Kato v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs

[2021] FCCA 331

FEDERAL CIRCUIT COURT OF AUSTRALIA

Kato v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 331

File number(s):

PEG 201 of 2020

Judgment of:

JUDGE KENDALL

Date of judgment:

25 February 2021

Catchwords:

MIGRATION – Temporary Graduate visa – decision of the Administrative Appeals Tribunal – where the applicant had not obtained a skills assessment – whether Tribunal should have adjourned – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s 476

Migration Regulations 1994 (Cth), cll 485.223, 485.224 of Schedule 2

Cases cited:

Bala v Minister for Immigration & Border Protection [2019] FCA 600

Craig v State of South Australia (1995) 184 CLR 163

Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration & Citizenship v Li (2013) 249 CLR 332

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294

SZFDE v Minister for Immigration & Citizenship [2007] HCA 35

SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

Number of paragraphs:

75

Date of hearing:

23 February 2021

Place:

Perth

Applicant:

Appeared in person

Counsel for the First Respondent:

Ms G Ellis

Second Respondent:

Submitting appearance, save as to costs

Solicitor for the Respondents:

Sparke Helmore Lawyers

ORDERS

PEG 201 of 2020

BETWEEN:

LIA KIOMI KATO

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE KENDALL
DATE OF ORDER:	25 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The application be dismissed.

REASONS FOR JUDGMENT

JUDGE KENDALL

INTRODUCTION

1. The applicant in these proceedings is a citizen of Brazil. She arrived in Australia on a student visa on 17 May 2017 (Court Book (“CB” 11).

2. On 19 September 2019, the applicant applied for a Temporary Graduate (Graduate Work) (subclass 485) visa (the “visa”) (CB 1-18).

3. On 22 November 2019, the applicant was asked to provide evidence of a skills assessment from the relevant assessing authority (CB 21-28). No evidence was provided.

4. On 23 December 2019, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 29-35). The delegate was not satisfied that the applicant met cl 485.224 of the Migration Regulations 1994 (Cth) (the “Regulations”) as the applicant had not provided evidence that she had obtained a “skills assessment outcome” from the relevant assessing authority.

5. On 13 January 2020, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 36-37).

6. On 9 April 2020, the applicant attended a hearing before the Tribunal (CB 59-60). The applicant was given until 7 May 2020 to provide “further information”. The Tribunal then agreed to a further extension to 8 June 2020.

7. On 18 June 2020, the Tribunal affirmed the delegate’s decision to refuse the visa (CB 71-74).

8. On 7 July 2020, the applicant applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.

   TRIBUNAL’S DECISION

9. The Tribunal’s decision is four pages long and spans 24 paragraphs.

10. The Tribunal first identified the type of visa the applicant had applied for (at [1]-[2]). The Tribunal noted that the delegate had refused the visa on the basis that the applicant did not provide the required skills assessment outcome from the appropriate authority (at [3]). It then confirmed that the applicant had attended a hearing and was represented by a migration agent at the hearing (at [4]-[5]).

11. The Tribunal explained that the issue in the case before it was whether the applicant met cll 485.223 and 485.224 of the Regulations (at [7]).

12. The Tribunal then set out the requirements of cl 485.223, as follows:

    8. Clause 485.223 requires that when the visa 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’.

    9. ‘Skilled occupation’ has the meaning given by r. 1.15I of the Regulations (r.1.03). An occupation is a skilled occupation if: it is specified by the Minister in an instrument in writing as a skilled occupation; and, if a number of points are specified in the instrument as being available - for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation. ‘Relevant assessing authority’ means a person or body specified by the Minister in an instrument under r.2.268 of the Regulations (r.1 .03). The relevant instrument is Legislative Instrument LIN 19/051.

13. The Tribunal found that the applicant had nominated the occupation of “Child Care Centre Manager” and that the relevant assessing authority was Trades Recognition Australia (at [10]). The Tribunal was satisfied that the visa application was accompanied by evidence that the applicant had applied for a skills assessment. Accordingly, cl 485.223 was met (at [11]-[13]).

14. The Tribunal then considered cl 485.224 as follows:

    14. Clause 485.224(1) requires that the applicant’s skills for the nominated skilled occupation have been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation. In addition, if the assessment is expressed to be valid for a particular period, that period must not have ended: cl.485.224(1A).

    15. There is an additional requirement if the skills assessment was based on a qualification obtained in Australia while the applicant held a student visa.

    16. At the date of the delegate’s decision on 23 December 2019 the applicant had not provided the required skills assessment outcome from the relevant authority.

    17. At the hearing of this matter on 9 April 2020 the Tribunal questioned the applicant and her representative if they had the required skills assessment.

    18. The applicant said that she sent all her documents to the TRA but has had no response from them. The applicant’s representative said that a realistic timeframe for their response is 120 days. At the date of the hearing, the time delay had already been six months.

    19. The Tribunal agreed to provide a further 4 weeks for the applicant to provide the relevant assessment. This timeframe was extended on 11 May 2020 to 8 June 2020. Nothing was received by this date.

    20. A review of the Tribunal’s records confirms that the requested skills assessment has not been provided, nor has the representative contacted the Tribunal to request further time.

    21.As the applicant has not provided evidence that her skills for the nominated skilled occupation have been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation, the requirements of cl.485.224 are not met.

15. The Tribunal found that the applicant did not meet the requirements of cl 485.224 (at [22]). Accordingly, the Tribunal refused to grant the applicant the visa.

    PROCEEDINGS IN THIS COURT

16. The applicant filed her judicial review application in this Court on 7 July 2020. The application contained 11 “grounds of review” as follows:

    l. I, Lia Kiomi Kato, applied for a 485, graduate stream, visa on 19 September 2019.

    2. At the time the authority for the skills assessment for Child Care Centre Manager (CCCM) was changing from Trades Recognition Australia (TRA) to Australian Children’s Education & Care Quality Authority (ACECQA).

    3. Before, I applied for the 485 visa, I applied to TRA for my provisional skills assessment as a CCCM as required.

    4. My visa application was refused on 23 December 2019.

    5. I applied to the Administrative Appeals Tribunal for a merits review of the decision.

    6. I appeared before the Administrative Appeals Tribunal trying to explain my situation.

    7. On 18 June 2020, the decision of the Delegate of the Minister was affirmed and the refusal was upheld.

    8. I do not think that my position, situation or circumstances have been adequately assessed for the visa.

    9. I think I am entitled to give my thoughts and reasoning for my position.

    10. I have relevant matters to discuss that I hope the court will take into consideration.

    11. I believe that I will have my positive provisional skills assessment returned to me before this honourable court has a hearing for my case.

17. The applicant was given an opportunity to file an amended application, any affidavit evidence and an outline of submissions. The morning of the hearing before this Court (being 23 February 2021), the applicant sent two further documents to Chambers. These documents were marked as Exhibit 2 and Exhibit 3 and are discussed below.

18. The materials before the Court thus include the judicial review application dated 7 July 2020, a Court Book numbering 74 pages (marked as Exhibit 1), Exhibit 2, Exhibit 3 and an outline of written submissions filed by the Minister on 14 January 2021.

19. At the hearing before this Court, the applicant appeared without legal representation. The Court confirmed that she had received a copy of the Court Book and the Minister’s written submissions. A Portuguese interpreter was available to assist the applicant. The applicant indicated at the commencement of the hearing that she wished for the matter to proceed in English but that she would ask the interpreter to assist her if any difficulties arose. The Court is satisfied that the applicant was able to understand and participate in the proceedings and thanks the interpreter for her assistance.

20. Noting that the applicant was unrepresented, the Court gave the applicant the opportunity to explain orally what she thought the Tribunal “did wrong”. This is the standard practice in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].

21. To assist the applicant, the Court explained to her that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:

    (a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;

    (b)where the decision-maker ignores relevant material: Craig at 198;

    (c)where the decision-maker relies on irrelevant material: Craig at 198;

    (d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];

    (e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and

    (f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28] (“Li”); Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].

22. It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa she seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

23. The Court will discuss the applicant’s oral submissions below when assessing grounds 9 and 10. These grounds of review both refer to the applicant being able to “give her thoughts” and “discuss” the Tribunal’s decision with the Court.

    CONSIDERATION

    Grounds 1-5 and 7

24. Grounds 1-5 and 7 of the judicial review application relate only to factual matters. They do not identify jurisdictional error and are not in dispute.

25. Grounds 1-5 and 7 are dismissed.

    Ground 6

26. Ground 6 states:

    I appeared before the Administrative Appeals Tribunal trying to explain my situation.

27. There is no dispute that the applicant appeared before the Tribunal (CB 59-60).

28. The applicant states that she was “trying” to explain her situation. Interpreting this ground as broadly as possible, the Court has considered whether there is anything which suggests that the applicant was unable to “explain her situation” or whether there was anything that prevented her from doing so when appearing before the Tribunal.

29. The Tribunal hearing record shows that the applicant and her migration agent attended the hearing before the Tribunal. The record indicates that that hearing was 8 minutes in length. While this is arguably short, the length of time must be considered within the context of the issue on review.

30. The issue on review was whether the applicant had provided evidence that her skills for the nominated skilled occupation had been assessed during the last 3 years by a relevant assessing authority as suitable for that occupation. That is, the applicant had to provide the Tribunal with evidence of a positive skills assessment.

31. At the time of the hearing before the Tribunal, the applicant was still awaiting the outcome of her skills assessment. It can be positively inferred that the reason Tribunal hearing was of limited duration was because the applicant was still awaiting the outcome of the skills assessment. A lengthier hearing could not cure that. Further, the Tribunal granted further time to provide the information.

32. Noting that the applicant was assisted by a migration agent and that the issue on review was confined to evidence of a positive skills assessment which was dependent upon a third party, the length of the hearing is reasonable. It cannot be said on the evidence that the applicant was denied an opportunity to “explain her situation”. Rather, it can be said that the Tribunal acted appropriately and gave the applicant additional time within which to provide the required evidence.

33. The Tribunal then gave the applicant a further extension of time to provide any relevant information. She was unable to do so. If the applicant is now stating that she did not get a chance to explain why she could not provide the information, the correspondence from her migration agent to the Tribunal to request additional time makes it clear that the applicant was making efforts to obtain her skills assessment outcome. Critically, no further request was made that indicated that the applicant still required further time. The applicant could have made that request. She did not do so.

34. On the evidence the applicant was given an opportunity to “explain her situation”.

35. Ground 6 is dismissed.

    Ground 8

36. Ground 8 states:

    I do not think that my position, situation or circumstances have been adequately assessed for the visa.

37. The applicant does not expand on why she considers this to be the case.

38. As the Minister submits, the Tribunal had regard to the applicant’s oral evidence and documentary evidence and the efforts taken by the agent to obtain the skills assessment (something which the agent stated should realistically take only 120 days).

39. On that basis, the Tribunal cannot be said to have failed to address or consider the applicant’s position, situation or circumstances.

40. Here, the dispositive issue was the applicant’s inability to meet cl 485.224, which states:

    (1) The skills of the applicant for the applicant’s nominated skilled occupation have been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation.

    (1A) If the assessment is expressed to be valid for a particular period, that period has not ended.

    (2) If the applicant’s skills were assessed on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification was obtained as a result of studying a registered course.

41. The Tribunal’s approach to determining this issue was entirely orthodox. Put simply, the applicant had not obtained the skills assessment which would have allowed her to meet cl 485.224 of the Regulations. The applicant did not contest this fact before the Tribunal.

42. While the applicant’s migration agent had made a number of inquiries about the progress of the application, it remained the case that at the time of the decision the applicant had not provided the necessary evidence to meet cl 485.224. Hence, the visa had to be refused.

43. It did not matter what the position, situation or the circumstances of the applicant were (including why she had not obtained the results). The applicant was required to have the skills assessment and, in the absence of any evidence in that regard, she simply could not be granted the visa.

44. Taking a broad view, the Court has considered whether, by ground 8, the applicant is arguing that it was “unreasonable” for the Tribunal not to adjourn the review in light of the circumstances before it.

45. It is clear on the materials before the Tribunal that the reason the applicant had not obtained the skills assessment was because of the delays of the assessment authority (CB 61-66). In her “request for an extension”, the applicant’s migration agent stated:

    We are seeking more time in order to receive the result from TRA, but as you can see we are not sure when that will be.

46. Following that request, the Tribunal granted the applicant an additional four weeks to provide further information.

47. In total, the Tribunal granted the applicant two four week adjournments to obtain the necessary information. The Minister notes that, at the time of the Tribunal’s decision, the applicant had been waiting for her skills assessment for over eight months. It should have, on the migration agent’s submission, taken only four.

48. Further, as the Tribunal noted, the applicant’s migration agent had not contacted the Tribunal and requested a further extension of time. The Tribunal’s decision was made 10 days after the time to provide the information had passed.

49. In the absence of any correspondence from the applicant or her migration agent providing an update or requesting a further adjournment, it was open to the Tribunal to proceed to determine the application.

50. Here, there was no indication of when the skills assessment would be provided. While it was clear that the skills assessment should have been provided, the correspondence indicated that the assessment authority was in the process of “settling transitional arrangements”. There was nothing to indicate how long this process would take. Indeed, it appeared to have been ongoing for some period of time. The agent himself stated “we are not sure when that will be”. The Tribunal cannot be expected to adjourn reviews for inordinate and undetermined periods of time.

51. Further, there was nothing advanced by the applicant to indicate that the skills assessment would be positive. Unlike in Li, there was nothing advanced by the migration agent showing that there was a proper basis for expecting a favourable outcome. The agent’s submissions were silent.

52. It is apparent from the Tribunal’s statement at [18] that, had the agent contacted the Tribunal and requested further time, then the Tribunal may not have proceeded as it did. However, in the absence of a further request from the agent (which was previously provided with supporting evidence), the Tribunal had no basis upon which to delay its decision.

1. It was open to the Tribunal to assume that, in the absence of a request for further time to await the information (a request which had previously been made twice), the applicant wished to proceed with the review. The fact that she did not request further time was contrary to her previous actions.  It was thus open for the Tribunal to consider that she did not wish to provide the evidence or that the assessment was not positive.

2. In light of the above, the Tribunal’s conduct was reasonable. While the Court may have taken a different approach, that is not the relevant test on review.

3. Ground 8 is dismissed.

   Grounds 9 and 10

4. Grounds 9 and 10 state:

   9. I think I am entitled to give my thoughts and reasoning for my position.

   10. I have relevant matters to discuss that I hope the court will take into consideration.

5. As noted above, the Court will consider the applicant’s oral submissions when addressing grounds 9 and 10.

6. When asked by the Court what oral submissions she wished to make, the applicant simply stated that her assessment took a “long time to process”.

7. While unfortunate, the fact that the assessment took a long time to process does not amount to jurisdictional error on the part of the Tribunal.

8. During the course of the Minister’s submissions the Minister referred to the applicant’s migration agent.  The applicant then explained that her migration agent told her “everything was ok” and that she “should not worry”. The applicant stated that she believes (but cannot be sure) that she gave Exhibit 2 and Exhibit 3 to her migration agent but it appears that he did not provide them to the Tribunal.

9. While the applicant has not provided any evidence in support of her submission that the agent told her everything would be fine and that she provided him with Exhibit 2 and Exhibit 3, the Court, taking these allegations at their highest, has considered whether they amount to a fraud on the Tribunal as per SZFDE v Minister for Immigration & Citizenship [2007] HCA 35 (“SZFDE”).

10. Exhibit 2 is a letter of recommendation from Trades Recognition Australia recommending that the applicant be found “successful”. It is dated 16 June 2020. Exhibit 3 is a letter from the Australian Children’s Education & Quality Care Authority. It states that the applicant had provisionally been assessed as suitable for the occupation of Child Care Centre Manager. The letter is dated 14 July 2020.

11. It is apparent from the date of Exhibit 3 that it could not have been provided to the Tribunal. Accordingly, any failure of the agent to provide Exhibit 3 cannot amount to a fraud which vitiates the Tribunal’s decision.

12. In relation to Exhibit 2, while it is unfortunate that the agent may not have supplied this to the Tribunal, there is nothing to suggest that the failure to do so was for a fraudulent purpose. Rather, the materials indicate that the agent made a number of endeavours to follow up on the applicant’s behalf regarding her skills assessment and to keep the Tribunal appraised. The agent attended the hearing. Any failure on the part of the agent to provide Exhibit 2 was, at its highest, an inadvertent error or oversight. This conduct does not amount to jurisdictional error: SZFDE at [53].

13. Insofar as the applicant states that the agent told her “not to worry” and that he would “sort it all out” these statements are not fraudulent. They did not prevent the applicant from participating in the Tribunal’s review process. The applicant participated and actively engaged in the review.

14. There is nothing to suggest that the migration agent acted fraudulently. In fact, he appeared to act to the best of his capabilities in the circumstances (noting that it was a third party which was causing the delay and not the agent or applicant).

15. The applicant’s oral submissions, and Exhibits 2 and 3, fail to identify any jurisdictional error.

16. Grounds 9 and 10 are dismissed.

    Ground 11

17. Ground 11 states that the applicant hopes to have her skills assessment “by the time of the hearing before this Court”.

18. Unfortunately, the fact that the applicant has obtained the skills assessment is not relevant to the Court’s task on judicial review (in the circumstances of this case). The skills assessment was not before the Tribunal and the Court is (except in rare circumstances) confined to the materials that were before the Tribunal at the time of the decision.

19. The Court notes that in Li, reference was made to the fact that a positive skills assessment was in evidence before the trial judge in that matter (at [122]). Here, however, the applicant never advanced any case as to her prospects of obtaining a successful outcome in the skills assessment.

20. The fact that the skills assessment was obtained following the Tribunal hearing, while unfortunate, is irrelevant in the proceedings before this Court.  The Court cannot review the merits of the Tribunal’s decision.

21. Ground 11 is dismissed.

    CONCLUSION

22. The application for judicial review has failed to identify any jurisdictional error. The Court has otherwise been unable to identify any jurisdictional error.

23. The application is, accordingly, dismissed.

I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.

Associate:

Dated:       25 February 2021