Kaur v Minister for Immigration

[2020] FCCA 1966

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1966

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Skilled (Provisional) (Class VC) visa – show cause hearing – requirement for skills assessment not satisfied – Applicant had 14 months to obtain successful skills assessment – no arguable case for relief – application for review dismissed.

Legislation:

Migration Act 1958 (Cth), s.338, Pt.5

Migration Regulations 1994 (Cth), cl.485.224(1) of Sch.2

Applicant: SUKHWINDER  KAUR

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1654 of 2018

Judgment of: Judge Blake

Hearing date: 15 July 2020

Date of Last Submission: 15 July 2020

Delivered at: Melbourne

Delivered on: 15 July 2020

REPRESENTATION

Advocate for the Applicant: In person

Solicitors for the Applicant: None

Advocate for the Respondents: Mr van der Westhuizen

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The Application filed on 12 June 2018 be dismissed and such order become operative from the date written reasons are published.

2. The Applicant pay the First Respondent’s costs in the proceeding fixed in the sum of $3,737.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1654 of 2018

SUKHWINDER  KAUR

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from the transcript)

Background

1. This is an application for a review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 8 May 2018. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a Skilled (Provisional) (Class VC) visa (‘visa’). 

2. The Applicant, Ms Kaur, is an Indian national who made an application for the visa the subject of these proceedings on 14 March 2017. Within that application, the Applicant declared that she had undertaken, or had applied to undertake, a skills assessment at the Australian Institute for Teaching and School Leadership, otherwise referred to as the Institute, on 22 December 2016.

3. Relevantly to this matter, clause 485.224(1) of Schedule 2 of the Migration Regulations 1994 (‘Regulations’) requires the following: 

   ‘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.’

4. By way of letter emailed to the Applicant on 12 May 2017, the Department requested, among other things, that she provide a copy of her skills assessment outcome from the relevant assessing authority. In response, the Applicant provided to the Department two emails addressed to her from the Institute. The first is dated 22 December 2016 and acknowledges receipt of her application for a skills assessment.  The second is dated 10 February 2017 and requested that she provide further information to the Institute to enable the completion of her assessment.  It requested that she provide to the institute by 9 August 2017:

   ‘…an academic version of an IELTS Test Report Form with scores of 7 or more in reading and writing and 8 or more in speaking and listening.’

5. Further and relevantly for the purposes of this case, the Applicant was expressly advised that her qualifications did not meet the Institute’s requirements for her to be exempted from completing the IELTS test.  Court Book page 39 contains an email from the Institute which provides, relevantly, after the reviewing the Applicant’s study history, as follows:

   ‘As a result, you have a combined total of 3.5 years of full-time study in Australian universities, 6 months less than the 4 years required to be exempted from providing an IELTS TRF.’

6. On 14 June 2017, the Department requested the Applicant provide evidence that she had taken or had booked to take the IELTS test. The Applicant subsequently provided evidence that she had booked the tests on both 8 July 2017 and 15 July 2017. Subsequently, on 8 August 2017, the Department again wrote to the Applicant requesting that she provide her Institute’s skills assessment outcome by 5 September 2017. The Applicant responded to this email on 5 September 2017 requesting an extension from the Department on the basis that the Institute had granted her an extension until 18 September 2017 to provide her IELTS test results. She attached to her email payment summaries indicating that she was booked in to undertake further IELTS tests on 9 and 16 September 2017. The extension that had been requested by the Applicant was ultimately granted by the Department, the new date being 30 September 2017.

7. On that date, 30 September 2017, the Applicant again wrote to the Department requesting a further extension. She advised she had not obtained the required IELTS test results across a single test but that she had achieved the required results if two of the tests undertaken were added together. She stated that she intended to seek a review of her results with the relevant testing coordinator and sought an extension until these matters had been reviewed.

8. Subsequently, on 9 October 2017, the Department requested the Applicant provide evidence that she had sought or intended to seek review of her IELTS test results. The Applicant provided via email on 15 October 2017 an invoice showing she had paid for an ‘IELTS remark’.

9. On 16 October 2017, the Department granted the Applicant an extension of 28 days in which to provide her skills assessment outcome. On 13 November 2017, the Applicant advised the Department that she had not obtained a positive test result and that she needed to ‘reappear again in [the] exam’.

10. On 14 November 2017, a delegate of the Minister refused to grant the Applicant the visa. The delegate found that the Applicant had not met the requirements contained within clause 485.224(1) of Schedule 2 to the Regulations by failing to provide evidence that her skills had been assessed by a relevant assessing authority as suitable for her nominated occupation.

11. On 15 November 2017, the Applicant applied to the Tribunal for review of the delegate’s decision.  By way of letter some four or so months later on 22 March 2018, the Applicant was invited to attend a hearing before the Tribunal scheduled for 13 April 2018. The letter specifically noted the following:

    ‘Skills assessment

    We note that to date you have not presented evidence that your skills have been assessed by the relevant assessing authority for your nominated skilled occupation. Please provide evidence that your skills have been assessed by the relevant assessing authority for your nominated occupation at (or before) the hearing. Please note that if you are unable to provide the relevant evidence, we will require good reason to grant you additional time to obtain it.’

12. The Applicant subsequently attended the hearing before the Tribunal on 13 April 2018. She gave oral evidence at the hearing that she had been unable to obtain the required skills assessment outcome as she had not successfully undertaken the IELTS test.

13. Subsequently on 8 May 2018, the Tribunal affirmed the delegate’s decision not to grant the Applicant the visa. The Tribunal found that the Applicant had not met the criteria contained within clause 485.224(1) of Schedule 2 to the Regulations. That is, the Tribunal found that the Applicant’s skills for her nominated skilled occupation had not been assessed during the past three years by the relevant assessing authority.

14. On 12 June 2018, the Applicant applied for judicial review of the Tribunal’s decision (‘Application’).  On 4 September 2019, Registrar Hird made orders in this Court which relevantly provided as follows: 

    a)the matter be listed for a show-cause hearing on a date to be fixed;

    b)the Applicant file and serve at least 28 days before the final hearing, an amended application with proper particulars of the grounds of the application, supplementary court book, if any, and written submissions; and

    c)the Minister file an outline of submissions 14 days before the hearing. 

15. The Applicant did not file, among other things, any amended application or written submissions. She did, however, on 14 July 2020, some 24 hours before this hearing today, send by email an affidavit she had sworn on 13 July 2020. That affidavit comprises of some seven paragraphs.  The Applicant also sent a number of other documents in that email, including a letter of clarification and documents said to be annexures to the affidavit she had filed.

16. Notwithstanding that the documents had been sent very late by the Applicant, the Minister did not object to the documents being filed and relied on, save for the following. The Minister objected to paragraphs 4, 4.1 and 4.2 and 6 of the affidavit of 13 July 2020 on the grounds of relevance and that the material had not been before the Tribunal. I uphold those objections for the reasons advanced and have not had regard to that material, which I would in any event have regarded as irrelevant to the task before me.

Application for Review

1. I turn now to deal with the grounds of the application. The grounds of review are set out in the application, which are as follows:   

   ‘4 yrs study wasn't considered as equivalent to Australian 4 yrs higher education by AITSL by AAT.

   Because of an effect of imposition of 5th Nov, 2011, I cannot apply for post-study work visa though from the beginning I was studying in Australia under 573 visa category - Higher education sector.

   AITSL decision was not reviewed by AAT I supported academic transcripts that states I have successfully completed 4 yrs of study which was not valued. Further I applied for extension to submit skill assessment outcomes but very less time for submission was provided by AITSL and department.’

2. In addition, the Applicant appears to raise three further grounds of review on the Application under the heading Other Interlocutory, interim or procedural orders sought, which are as follows:   

   ‘1. All documents of Australian Qualifications was submitted.

   2. Reason was produced as why AITSL didn't provided exemption equivalent to 4 yr of study.

   3. The date of extension provided was too short - evidence was provided.’

3. I mentioned previously the affidavit sworn by the Applicant on 13 July 2020. In that affidavit, the Applicant says, in effect, first that she was unsuccessful in convincing the Institute that she has four years of full-time study, second that she struggled to validate or prove her English proficiency, and third that she wants the court to refer her qualifications to an expertise assessment personnel to re-examine. 

4. I observed the Applicant also filed an affidavit that accompanied the application to this court.  In that affidavit, she appears to say that she successfully completed four years of higher education equivalency in order to get the exemption.

5. Before me today, the Applicant pleaded to be given one last chance to complete successfully the relevant assessments. She submitted she had been under pressure for a variety of reasons, including for health reasons, being a victim of a burglary and being unable to perform to her best when she sat the IELTS test. She said that the continuing short extensions granted by the Department added to her stress and took away from her performance in tests, in circumstances where she needed a clear period of around 10 weeks. 

6. Hearing Ms Kaur, the Applicant, today, it is difficult not to feel some sympathy for her. She is clearly distressed at the prospect that she will be unable to obtain the visa and potentially to continue in her chosen career in Australia.  She effectively asked me to grant her a further period of some months to enable her to do what was required.

7. While I accept the Applicant is distressed, I attempted to explain to her the role of the Court today is simply to assess whether there has been an error made by the Tribunal in its decision. It is to that matter that I now turn. 

8. Given the distress of the Applicant and the fact that she is unrepresented, it is difficult to understand with precision the Applicant’s case.  I have done my best, however, to do so. There seems to be little doubt that at least one aspect of the Applicant’s complaint before this Court is the failure by the Institute to regard the Applicant’s study history as being equivalent to four years of higher education study. It seems on the papers that had the Institute done so, the Applicant would not have been required to sit the IELTS test. Alternatively, the Applicant’s complaint may be regarded as the Tribunal falling into error by not reviewing the skills assessment conducted by the Institute.

9. To the extent the above complaints are advanced by the Applicant, they, unfortunately for her, misunderstand the role of the Tribunal and are misconceived. The role of the Tribunal was to consider whether the Applicant was able to satisfy the criteria set out in clause 485.224(1) of Schedule 2 of the Regulations. It was apparent from the Applicant’s own evidence that she could not satisfy the requirements of this regulation. Once the Applicant was not able to satisfy the Tribunal she was in the position to comply with the regulation, the Tribunal was left in the position of making a finding that she has not satisfied clause 485.224(1).

10. Unfortunately for the Applicant, the Tribunal does not have any power or scope to vary the criteria of clause 485.224(1) or to find that it does not apply or that it should not be applied. Additionally, the Tribunal does not, in the circumstances of this case, have any power or jurisdiction to interfere with the conclusion reached by the Institute. The matter before the Tribunal was a review pursuant to part 5 of the Migration Act1958 (‘Act’). Accordingly, the Tribunal’s jurisdiction only extended to reviewing decisions caught by section 338 of the Act. The decision of the Institute in relation to the Applicant’s complaint about her years of study not being recognised is not, for the purposes of the present proceeding, a Part 5 reviewable decision.

11. There is then the apparent complaint by the Applicant that she was not provided with sufficient time to obtain a positive IELTS result.  On the face of the material, this is a complaint she seems to make in relation to the Institute, the Department and the Tribunal. 

12. In my view, the chronology that I have set out above goes some way to answering this complaint. That chronology discloses that the Applicant was given ample opportunities by the Department, and also by the Tribunal, to put forward information to demonstrate that she had satisfied the requirements of clause 485.224(1). Indeed, the Applicant had almost 14 months from the time she lodged her application until the Tribunal’s ultimate decision on 8 May 2018 to obtain a successful outcome. She did not do so.

13. In addition to these matters, I observed that to the extent the complaint is levelled at the Department or the Institute, the Court does not have power to review the decisions of those bodies. This is because the Applicant has not sought a review of the actions of those bodies, assuming that she is, in fact, able to do so. Certainly, the Court does not have jurisdiction to review a decision of the Department.

14. There was then a further apparent complaint by the Applicant that she was not eligible for the post-study work stream sub-class 485 visa because she was granted a student visa before 5 November 2011. That much may be true, however any submission that she is not eligible for another type or class of visa does not assist her in this case. The relevant question before me is whether the Tribunal was in error in holding that the Applicant did not satisfy the relevant regulation. 

15. For the reasons that I have articulated already, the Tribunal was not in error. 

16. There is then the matter advanced by the Applicant today that she was, among other things, psychologically shattered, stressed, and unable to complete the IELTS test at relevant times for a variety of reasons, including her health, being the victim of a burglary and other family issues. I note these matters do not appear to have been raised at the Tribunal hearing. She did not put on any evidence in relation to them, either at the Tribunal or before me, that I can see.

17. It cannot therefore be said that the Tribunal failed to consider such matters, or that it acted unreasonably in proceeding to hear the matter. There is nothing about the approach of the Tribunal that appears unreasonable or unfair, given what I have seen in the material before me. 

18. Finally, the Applicant said today that when she appeared before the Tribunal, she asked for a further three months in order to be able to demonstrate she could satisfy the relevant regulation. There are two things to be said about this. First, as I have indicated above in respect of the previous matter, the Applicant has not put on any evidence in relation to this issue. The decision of the Tribunal does not refer to such requests being made or refused.  There is no evidence of the audio recording of the Tribunal before me.

19. Second, it seems to me that even if the time had been granted, it would not have aided the Applicant. She appeared today asking for three more months to get her house in order. She has, however, had the entire time since the Tribunal decision to do that. However, she has not done so.  Any adjournment, it seems, would therefore not have been of any utility.

20. I am conscious that the decision that I have reached will have grave consequences for Ms Kaur, the Applicant.  While I have sympathy for her, my role is to review and identify whether there has been any error in the Tribunal’s reasons.  I am unable to identify any error.  In light of the above, I find that the Applicant has not raised an arguable case for relief.  The appropriate course is to dismiss the application for review.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Blake

Associate:

Date: 20 July 2020