HEMLATA v Minister for Immigration - [2014] FCCA 968

FEDERAL CIRCUIT COURT OF AUSTRALIA

HEMLATA v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 968

Catchwords:
MIGRATION – Nominated occupation required in application for visa – whether applicant can change their mind and nominate another occupation – whether change can be made if first occupation nominated by mistake – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.55, 65, 104, 105

Migration Regulations 1994, Sch.1 sub-cl.1229(4)(b)(ii), Sch.2 cl.485.

Chen v Minister for Immigration & Anor [2011] FMCA 859
MZYMG v Minister for Immigration and Citizenship [2012] FCA 89
NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199
Patel v Minister for Immigration and Citizenship [2011] FCA 1220
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965

Applicant:

HEMLATA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 2002 of 2013

Judgment of:

Judge F. Turner

Hearing date:

8 April 2014

Date of Last Submission:

8 April 2014

Delivered at:

Melbourne

Delivered on:

29 May 2014

REPRESENTATION

Counsel for the Applicant:

Mr Langmead

Solicitors for the Applicant:

Oceania Migration Lawyers

Counsel for the Respondents:

Ms Latif

Solicitors for the Respondents:

Clayton Utz

ORDERS

The applications for judicial review filed on 21 November 2013 are dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2002 of 2013

HEMLATA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

These are applications for judicial review of the decision of the Migration Review Tribunal (the “Tribunal”) dated 1 November 2013. That decision affirmed the decision of a delegate to the Minister for Immigration & Border Protection not the grant the applicants Skilled (Provisional) (Class VC) visas.
The second named applicant is married to the first named applicant wife (Court Book “CB” pp.1 and 3).
The grounds in the application for judicial review are:
(1)Nominated occupation skills were negative from TRA and Office Manager occupation does not match with nominated occupation.
The applicable sub-class of visa for the visa applied for in this case is 485, the criteria for which are set out in cl.485 of Schedule 2 to the Migration Regulations 1994 (the “Regulations”).
Clause 485.2 sets out the Primary Criteria for this type of visa, which must be satisfied by at least one member of a family unit.
Clause 485.3 sets out the Secondary Criteria which must be satisfied by other members of the family unit.
The delegate refused the visas because the first named applicant (“the applicant”) did not satisfy cl.485.221 of Schedule 2, which at the time was as follows:
(1)“The skills of the applicant for the applicant’s nominated occupation have been assessed by the relevant assessing authority as suitable for that occupation.
(2)If the assessment mentioned in subclause (1) is made on the basis of a qualification obtained in Australia while the applicant was the holder of a student visa, the qualification was obtained as a result of studying a registered course.” (CB p.98).
The applicant had not provided evidence of a skills assessment for the skilled occupation she had nominated in her visa application being a ‘Graphic-Pre-Press Trades Worker’ (CB pp.12 and 99.2).
On 10 September 2013 the applicant’s representative informed the Department that the applicant nominated the wrong skilled occupation in “her” application and (he) wanted to be assessed on the basis of ‘Office Manager’ (CB p.219 [16]). In a submission dated 26 August 2013 the applicant’s migration agent stated that the incorrect occupation had been selected (CB p. 165).
At the hearing before the Court on 8 April 2014, Mr Langmead of Counsel appeared for the applicants and Ms Latif of Counsel for the first respondent.
The issue in this case is whether the applicant was prevented by the decisions in Chen v Minister for Immigration & Anor [2011] FMCA 859 and Patel v Minister for Immigration and Citizenship [2011] FCA 1220 from changing the skilled occupation in her visa application. That question is to be determined by examining the decisions in Chen and Patel.

Chen

In Chen (supra) Lloyd-Jones FM (as he then was) judicially reviewed a decision of the Tribunal that a person “could not change their nominated skill occupation during the currency of an application, or review of the Minister’s decision by the Tribunal” ([2]).
The applicant had applied for a visa and nominated a skilled occupation of ‘chef’. The criteria for the relevant visa was set out in cl.485.221(2) which was the same as cl.485.221 in the present matter. The Minister’s delegate refused to grant the applicant a visa because she found that the applicant had not applied for a skills assessment for his nominated skilled occupation. The applicant’s migration agent wrote to the Tribunal stating that the applicant had mistakenly nominated ‘chef’ rather than ‘cook’ on his visa application. On review of the decision of the delegate, the applicant’s solicitor produced a letter that stated that the applicant applied for the visa online and “mistakenly nominated Chef rather than Cook on the visa application” (Ibid [23]). The Tribunal found that the “applicant made a mistake and put the incorrect nominated occupation in (her) application form” (Ibid [25]), but that the applicant intended to nominate ‘chef’ (Ibid [39]).
Loyd-Jones decided at [44] that there is “no mechanism in the Act or Regulations to change” this nomination once the application had been lodged.
Mr Langmead referred to the passage as obita dicta; however the Court find that it was the ratio decidendi for his Honour dismissing both grounds for judicial review (Ibid [46] and [58]). His Honour held that “there is no mechanism within the Act to amend an application once it has progressed to this stage” (Ibid [58]). ‘This stage’ was the hearing of an application for review by the Tribunal.

Patel

Patel (supra) involved an appeal from a decision of the Federal Magistrates Court (as this Court then was), which dismissed an application for judicial review of a decision of the Tribunal; that decision affirmed the decision of a delegate to the Minister to refuse to grant the applicant a Skilled (Provisional) (Class VC) subclass 485 (Skilled Graduate) visa. The applicant had applied for a visa online and nominated his skilled occupation as ‘Family Counsellor’ (Ibid [4]). The applicant provided a skills assessment with a nominated occupation of ‘Environmental Health Officer’ (Ibid [6]).
The applicant lodged a “notification of incorrect answer” listing “as information which was incorrect the nominated occupation of Family Counsellor and Environmental Health Officer and stating the correct details as being ‘Computing Professional’” (Ibid [9]).
The Tribunal stated that it “rejects the applicant’s argument that he intended to nominate the occupation of Computing Professional nec and that the nomination of another occupation was an inadvertent mistake by the agent’s staff member” (Ibid [14] at [40]).The Tribunal found “that it was the applicant’s intention to nominate the occupation of Family Counsellor (ASCO 2513-15) in the application ...” (Ibid [14] at [40]).
In Patel, Justice Robertson found:
(15)“The Tribunal found as a fact that the appellant’s intention was to nominate the occupation of Family Counsellor in the application”.
(16)The terms of the application to the Federal Magistrates Court, amended as marked, were:
1. “The decision of the Second Respondent is affected by jurisdictional error in that the Second Respondent erred:
a.in finding that the skilled occupation, once nominated, has to be the same occupation throughout the application process as that initially nominated on the visa application form;
b.in holding that there is no legislative mechanism that enables an applicant to ~~change~~ correct the nominated skilled occupation after the visa application is made;
c.in failing to hold that the Applicant, by submitting a completed Form 1023 pursuant to s 105 of the Migration Act 1958 (Cth) as notification of an incorrect answer given on the application form, had ~~changed~~ corrected the nominated skilled occupation;
d.in proceeding to consider the Applicant’s visa application on the basis that the skilled occupation was that initially nominated on the visa application form;
e.in failing to consider the Applicant’s visa application on the basis that the skilled occupation was that nominated on the visa application form as corrected by the completed Form 1023.”
The Tribunal found that at “the time of the making of the application for the visa the appellant had not made any application for assessment as a computing professional” (Ibid [23]).
His Honour referred to ground two of the original Notice of Appeal “which was whether the appellant could in the circumstances of this case change his nominated skilled occupation” (Ibid [29]).
His Honour found, as obiter dicta that, “this issue was whether the appellant could in the circumstances of this case change his nominated skilled occupation from Family Counsellor to Computing Professional” (Ibid [53]).
His Honour stated that “a change of mind as to the skilled occupation nominated does not, in my view, answer the statutory description of additional relevant information [emphasis added]” (Ibid [58]). His Honour was referring there to the wording of s.55 of the Migration Act 1958 (the “Act”).
His Honour considered s.104 of the Act, which he found “applies where circumstances change so that an answer to a question on a non-citizen’s application form "is incorrect in the new circumstances” (Ibid [59]). His Honour found that “In my opinion, s 104 does not encompass a change of mind about a nominated occupation” (Ibid [60]).
His Honour considered s.105 of the Act and found that section is “addressed to the case where a non-citizen becomes aware that an answer given or provided in the form on which he applies for a visa ‘was incorrect when it was given or provided’”. His Honour found that s.105 “does not apply because the answer given about the nominated skilled application was not incorrect when it was given or provided” (Ibid [61]).
On the basis of Chen (supra) the Court finds that an applicant for a visa cannot change their nominated skilled occupation once the application has been lodged – that is during the currency of an application, or review of the Minister’s decision by the Tribunal. There is no mechanism in the Act to amend an application once it has progressed to a review by the Tribunal.
On the basis of Patel (supra) the Court finds that an applicant cannot change their nominated skilled occupation, because of a change of mind as to what their nominated skilled occupation should be.
At the hearing on 8 April 2014 Mr Langmead submitted that the issue is “whether is it possible to amend an application?” (Transcript ‘T’ p.2, l.25).
Sub-paragraph 1229(4)(b)(ii) of Schedule 1 to the Act provided as follows:
(4)The following requirements must be met:
(a)…
(b)the applicant seeking to satisfy the primary criteria for the grant of the visa:
(i)must be less that 45; and
(ii)must nominate a skilled occupation in the application for which at least 50 points are available as specified by the Minister in an instrument in writing for this subparagraph.
Mr Langmead submits that the Tribunal erred in deciding at [40] and [41]:
(40)Sub-subparagraph 1229(4)(b)(ii) makes it clear that in order for an application to be valid the applicant must nominate a skilled occupation. There is no provision in this sub-subparagraph to nominate more than one possible skilled occupation for the purposes of the visa application. Nor is there any mechanism in either the Act or Regulations for applicants to otherwise correct or alter the skilled occupation they have nominated in their visa application.
(41)The Tribunal also notes the Courts have considered whether an applicant can at a later date change the skilled occupation that was originally nominated in the visa applicant. As a result, it has been held that under the General Skilled Migration visa scheme (post 1 September 2007), it is not possible for an applicant to change his/her nominated skilled occupation during the processing of the visa application”.
Mr Langmead seeks to distinguish Chen (supra). He refers to the decision at [44] that “there is no mechanism in the Act or the Regulations to change this nomination once the application has been lodged” as obiter dictum. However even if it is obiter it is of persuasive value. The Court has rejected the contention that it is obiter. The Court finds the decision in Chen to have application in this matter.
Mr Langmead seeks to distinguish Patel on the basis that the analysis centred on changed circumstances not a change of mind. The Court has found that the decision in Patel is applicable to a situation where an applicant seeks to change their nominated skilled occupation because of a change of mind (Patel [58]).
Mr Langmead submits that in the present case the nominated skilled occupation resulted from a mistake when selecting the box from a drop-down menu as the occupation of Office Manager was missing. No evidence was called to support that contention. The selection shows a deliberate intention to select the occupation of Graphic Pre-Press Trades Worker. It beggars belief that there was a mistake and what was intended was Office Manager – it is somewhat difficult to imagine more different descriptions of positions. Further, the applicant applied to Trades Recognition Australia (“TRA”) for a skills assessment (CB p.222 [35]) which is the authority that performs skills assessment for Graphic Pre-press Trades Worker and not Office Manager (CBp.223 [38]). Applying to TRA and not Vetassess shows an intention to be assessed for the actual occupation nominated of Graphic Pre-press Trades Worker.
The applicant confirmed at the hearing before the Tribunal “that she had lodged an application for a skills assessment… as a ‘Graphic Pre-press Trades Worker’ (CB p.222 [35]). Mr Langmead submits that the Tribunal erred in deciding that the applicant could not amend her nominated skilled occupation. The Court rejects that submission – The Tribunals decision accords with the case law (supra).
Ms Latif submits that [40] and [41] of the Tribunal’s decision are supported by Patel and Chen. For the reasons (supra) the Court accepts that submission.
Ms Latif submits that even if the Tribunal erred in law, which is denied, it went on and made findings on a question of fact raised by the Notification of Incorrect Answer (see Patel (supra) [15]), and found as a fact that the applicant nominated the skilled occupation of Graphic Pre-Press Trades Worker (CB p.226 [59]). That finding of fact is not amenable to review. That is an independent and unimpeachable basis for the decision, and once that finding was made, it followed that the criteria for issue had not been satisfied and the visa had to be refused (s.65 of the Act).
Where there is an independent and unimpeachable basis for the decision, it is appropriate not to remit the matter for reconsideration, because of an error elsewhere. This is the effect of the decision in VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33].
The Court refers to the decision of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [29]:
“The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s 424A, they cannot overcome the Tribunal’s finding that their claims lacked the requisite Convention nexus. The appellants’ case, like Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board[1], cited in Aala, was one in which “irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse”[2]. In this regard, the references that were made in the course of argument to the “unbundling” of a Tribunal’s reasons into “impeachable” and “unimpeachable” parts were more likely to mislead than to assist. While there may well be cases in which a tribunal’s breach of s 424A affects its findings about the absence of a Convention nexus, this was not such a case.”
[1] [1994] 1 SCR 202 at 228.
[2] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 109 [58].
As stated by Kirby J in SZBYR (supra) at [88]-[89]:
“In effect, the discretion allows the reviewing court to say: The case is clear. A sound basis for the challenged decision has been established. Even if a postulated error has occurred in complying with s 424A and could be proved, any such error is immaterial because it could not undermine the essential legal basis that sustains the decision. In that event, to divert the court’s time and resources into examining a supposed technical breach is not a proper use of its energies. Nor is it required by the justice of the case.
When such conclusions are reached, the reviewing court is entitled to, and should, reject the application in the exercise of its discretion. It should leave analysis of suggested technical infractions to a case where the result of such analysis might influence the outcome. This was not such a case.”
Quoting from NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199 at [11]-[12]:
“… ‘relief under s 75(v) of the Constitution is, like prerogative relief generally, discretionary’: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [33]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441 at [90].
As was said of the writ of mandamus (which is the principal relief sought in this matter) in The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. [1949] HCA 33; (1949) 78 CLR 389 at 400:
‘the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.’ (emphasis added)
See generally Aronson, Dyer and Groves, Judicial Review of Administrative Action, 736ff (3rd ed, 2004).
The Court refers to SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at [122] by Tracey and Foster JJ and applied in MZYMG v Minister for Immigration and Citizenship [2012] FCA 89 at [28]:
“Even if there was some error in the Tribunal’s application of s 91S, the relocation findings made by the Tribunal provide an alternative and independent basis for affirming the delegate’s decision.”
The Court finds no finding of fact that was so unreasonable that no reasonable person could have come to it (Wednesbury unreasonableness) or error of law. The applicant failed to satisfy the criteria for the visa.
Section 65 of the Act provides that if the Minister is not satisfied that the relevant criteria have been satisfied, the Minister is to refuse to grant the visa. That is what occurred.

The grounds in the application for judicial review do not raise any error by the Tribunal. The grounds are dismissed. The application for judicial review is dismissed. The second application relies on the first, and therefore it is dismissed also.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Associate:

Date: 29 May 2014