FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 2209 |
| Catchwords: MIGRATION – Application to review decision of Migration Review Tribunal – Skilled (Provisional) Visa –– where Tribunal found Applicant did not satisfy Public Interest Criterion 4020 – whether the Tribunal misapprehended and misapplied the relevant law or failed to take into account a relevant consideration – whether requirement that the skills of the Applicant have been assessed by the relevant assessing authority as suitable for the Applicant’s nominated skilled occupation was not practicable or certain in operation. |
| Legislation: Acts Interpretation Act 1901 (Cth), ss.7, 8 |
| First Applicant: | RAJVINDER KAUR |
| Second Applicant: | RESHAM SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 802 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 3 October 2013 |
| Delivered at: | Sydney |
| Delivered on: | 19 December 2013 |
REPRESENTATION
| Counsel for the Applicants: | Mr Nair |
| Counsel for the Respondents: | Mr Knowles |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The name of the First Respondent be amended to read “Minister for Immigration and Border Protection”.
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 802 of 2013
| RAJVINDER KAUR |
First Applicant
| RESHAM SINGH |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Migration Review Tribunal dated 15 March 2013. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicants Skilled (Provisional) (Class VC) visas.
On 30 June 2009 the First Applicant applied for a Skilled (Class VC) visa. The Second Applicant applied as a member of her family unit. For convenience the First Applicant is referred hereafter to as “the Applicant”. In her application the Applicant nominated her occupation as a pastry cook. She stated that she had a skills assessment dated 14 April 2009 from Trades Recognition Australia (“TRA”). A copy of a TRA assessment of her skills as a pastry cook was provided to the Department together with other supporting documentation.
On 18 January 2010 the delegate refused the visa application. Relevantly, the delegate found that the Applicant did not meet the criteria for Subclass 485 or 487 in Class VC. One of the applicable criteria for each subclass required that the skills of the Applicant had been assessed by the relevant assessing authority as suitable for the Applicant’s nominated skilled occupation. In addition, at that time, the criterion was that no evidence had become available since the time of the application that the information given or used to obtain such skills assessment was false or misleading in a material particular. The delegate found that in an interview with Departmental investigators in December 2009 the Applicant had admitted that while she had submitted a work reference from Arthur’s Bavarian Bakehouse (“the Bakehouse”) to TRA for the purpose of obtaining a suitable skills assessment, she had not in fact worked at the Bakehouse. The delegate found that the work experience letter provided to TRA for the purpose of obtaining a suitable skills assessment was false or misleading in a material particular and hence that the Applicant did not meet the then applicable criterion in cl.487.227(e) or in cl.485.223(c) of Schedule 2 to the Migration Regulations.
The Applicant sought review by the Tribunal on 28 January 2010. On 2 April 2011 cl.487.227 was repealed by the Migration (Amendment) Regulation 2011 (No. 1) (“the Amending Regulations”). New clauses 487.288 and 485.224 required the Applicant to satisfy Public Interest Criterion 4020 (PIC 4020). On 2 September 2011 the Tribunal as originally constituted affirmed the decision not to grant the Applicants Class VC visas on the basis that the Applicant failed to meet PIC 4020 because she had provided a “bogus document” (the Bakehouse work reference) to TRA which the Tribunal held was a “relevant assessing authority”.
The Applicant sought judicial review of the Tribunal decision. On 20 June 2012 the matter was remitted by consent on the basis that the Minister accepted that the Tribunal had fallen into error in circumstances where TRA had not been properly specified as a relevant assessing authority so that PIC 4020 could not materially bear on relevant criteria for a subclass 487 visa (see Singh v Minister for Immigration & Anor [2012] FMCA 145 in relation to the issue of specification of TRA under reg.2.26B of the Migration Regulations).
On 15 March 2013, after a further Tribunal hearing, the reconstituted Tribunal affirmed the decision not to grant the Applicants Class VC visas. It is that decision that is the subject of these proceedings. In its reasons for decision the Tribunal set out the submissions made by and on behalf of the Applicant in particular in relation to whether any material given to TRA at a time when it was not a relevant assessing authority could be classified as false or misleading within the then applicable criterion and whether PIC 4020 was applicable. The Tribunal also set out in some detail the Applicant’s evidence and issues raised at the Tribunal hearings. It recorded that on 17 January 2013, TRA had informed it that it had revoked the Applicant’s skills assessment on 18 January 2010. It put this and other information to the Applicant under s.359A of the Migration Act 1958 (Cth) (“the Act”) for comment. She responded by facsimile sent on 12 February 2013 claiming that cl.487.223 should be set aside or considered as met as it was “not workable” and that the time of decision criteria at the time she lodged her visa application should apply.
In its findings and reasons the Tribunal considered first whether the Applicant satisfied cl.487.223 of Schedule 2 to the Migration Regulations which required that at the time of the decision the skills of the Applicant had been assessed by the relevant assessing authority as suitable for the Applicant’s nominated skilled occupation. The Tribunal found that when making the visa application the Applicant had nominated the occupation of pastry cook, that this was a skilled occupation set out in legislative instrument IMMI 12/068 and that “the relevant assessing authority” is specified as the TRA.
The Tribunal considered the Applicant’s submission that cl.487.223 did not apply to her because at the time of her visa application TRA was not properly specified. The Tribunal referred to Zhang v Minister for Immigration and Citizenship and Another (2012) 271 FLR 65; [2012] FMCA 1011 in which this Court held that the relevant date for determining whether a provision concerning skills assessment by a relevant assessing authority was applicable to an applicant was the time of the Tribunal decision, not the time of the visa application. On that basis the Tribunal found the Applicant was required to meet cl.487.223. It also found that TRA was validly approved and specified as the relevant assessing authority prior to the commencement of IMMI 12/068 on 1 July 2012, that IMMI 12/068 did not purport to take effect before the date it was registered, but that it was relevant and applicable at the time of decision.
The Tribunal also addressed the Applicant’s claim that she had not been able to obtain a fresh skills assessment because the TRA’s systems and program changes would not allow her to do so. Earlier in its reasons it had recorded her claim that there was no direct pathway for TRA assessment of qualifications for Subclass 487, that she had to register online for the Job Ready Program, but that the system would not let her do so and that TRA could not provide a solution. She claimed a TRA officer had advised her not to declare her previous file number, but that she understood from a migration agent that this would have been a fraud and subject to PIC 4020. The Tribunal stated that it had carefully considered this evidence, but found that there was no provision in the Regulations giving it a discretion to waive the requirement that the Applicant satisfy cl.487.223.
The Tribunal observed that the Applicant did not seek to rely on the revoked skills assessment of 14 April 2009 and that she had not been able to provide evidence of a current skills assessment. It found that she did not have a current skills assessment confirming that her skills had been assessed by the relevant assessing authority as suitable for her nominated skilled occupation of pastry cook. Hence the Tribunal found that she did not satisfy cl.487.223. For the same reasons it found that the Applicant did not satisfy the equivalent criterion in cl.485.221.
The Tribunal then considered whether at the time of the decision the Applicant met PIC 4020 (as required by cl.487.228). Relevantly, PIC 4020 requires that there be “no evidence before the Minister that the Applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to … the application for the visa.”
The Tribunal addressed the Applicant’s contention that PIC 4020 did not apply to her as it was introduced after the date of her visa application and that it would be manifestly unjust or oppressive to impose such a requirement on her. The Tribunal did not agree. It referred to the fact that the delegate had refused the application on the basis that the Applicant did not satisfy former cl.487.227 of Schedule 2 to the Regulations (the time of decision criterion then in force) which required that there be no evidence that information given or used to meet visa application requirements or to obtain a skills assessment was false or misleading in a material particular). It acknowledged that this criterion was repealed on 2 April 2011 (by the Amending Regulations) and that new PIC 4020 had been inserted in the relevant criteria current at the time of decision. It found that the Amending Regulations specified that these amendments applied to applications made but not finally determined before 2 April 2011 and applications made on or after that date. The Tribunal was of the view that it was not unjust or oppressive to test whether the Applicant met PIC 4020 at the time of decision, as required by the law.
The Tribunal found that the Applicant had lodged with the Department a TRA skills assessment dated 14 April 2009 in support of her visa application of 30 June 2009. It found that TRA had been provided with a work reference for the Applicant purporting to be from the Bakehouse for the purpose of obtaining the skills assessment. The Applicant had told the Tribunal that she had never been employed as a pastry cook at the Bakehouse and had no work experience as a pastry cook at the time the TRA application was lodged or at the time the visa application was lodged. On the basis of the Applicant’s oral evidence the Tribunal found that she did not work at the Bakehouse as stated in the work reference provided to TRA.
The Tribunal referred to the fact that the Applicant did not dispute that information contained in that work reference was false or misleading and had admitted she had never worked at the Bakehouse. The Tribunal did not accept the Applicant had been honest in relation to her evidence that she did not know that the work reference was being provided to TRA and thought that she could get the relevant work experience at a later date. It found that her evidence in this respect to was disingenuous. The Tribunal observed that the skills assessment stated it was granted on the basis of 900 hours of work experience. It was satisfied that while the Applicant might not have been familiar with the specifics of the work reference provided to TRA, she knew that a work reference attesting to her having worked the requisite number of hours in her field would be, and was, provided to TRA. The Tribunal was satisfied that the Applicant knew false and misleading information was provided to TRA stating she had the relevant work experience in order to obtain a successful skills assessment.
The Tribunal addressed the Applicant’s claim that she did not personally provide the false and misleading information, as this was done by a person who made the skills assessment application for her. The Tribunal was of the view that the Applicant signed an application for a TRA skills assessment knowing that she did not have the necessary work experience and paid a sum of money to obtain the skills assessment knowing she did not have the necessary work experience.
The Tribunal had regard to the fact that the concept of “bogus document” referred to in PIC 4020 has the same meaning as in s.97 of the Act (see reg.1.03) and is defined, in relation to a person, to include a document that the Minister reasonably suspects is a document that purports to have been, but was not, issued in respect of that person or is counterfeit or has been altered by a person who does not have the authority to do so or was obtained because of a false or misleading statement, whether or not made knowingly.
Based on the Applicant’s evidence, the Tribunal was satisfied that the work reference purporting to be from the Bakehouse provided for the Applicant to TRA, was a document obtained because of a false or misleading statement, whether or not made knowingly. It also found that the work reference purported to have been issued by the manager of the Bakehouse, but that it was not. Hence the Tribunal found that the work reference purporting to be from the Bakehouse and provided to TRA was a bogus document.
The Tribunal formed the view that the Applicant knew she was supposed to have work experience at the time she lodged her TRA application. Based on its findings, the Tribunal found there was evidence before it that the Applicant had given or caused to be given to the TRA, a relevant assessing authority, a bogus document in relation to the application for the visa.
In addition, the Tribunal found that the skills assessment dated 14 April 2009 was obtained by the Applicant because of a false and misleading statement that she had 900 hours work experience (as a pastry cook). Accordingly the Tribunal found the TRA skills assessment dated 14 April 2009 was a bogus document and that when the Applicant made the visa application and provided the skills assessment to the Department, she gave a bogus document to the Minister.
Based on these findings, the Tribunal found that the Applicant did not satisfy PIC 4020(1).
The Tribunal considered whether to waive the requirements of PIC 4020(1) as provided for in PIC 4020(4). It addressed the Applicant’s claims that she had “studied honestly” and because of her mistake her studies had “gone to waste” and that she had told the truth to and co-operated with investigators. The Tribunal did not consider the Applicant’s circumstances amounted to compelling circumstances or compassionate and compelling circumstances within PIC 4020(4). It decided not to waive the requirements of PIC 4020(1).
Based on these findings, the Tribunal found that the Applicant did “not satisfy cl.487.223 and cl.485.221, PIC 4020, cl.487.228(a) and cl.485.224(a)”. Hence the Second Applicant did not satisfy the criteria in relation to members of the family unit in. The Tribunal affirmed the decision not to grant the Applicants Class VC visas.
The Applicants sought review by application filed in this court on 17 April 2013. They now rely on a Further Amended Application filed, with leave, on 3 October 2013. There are two ground in the further amended application.
Ground one
The first ground in the further amended application is that “the Tribunal’s purported decision is vitiated by a misapprehension and misapplication of the relevant law.” The particulars to this ground are as follows:
i)On 30 June 2009, the primary applicant (“the applicant”) applied for a Class VC, subclass 487 Skilled – Regional Sponsored visa.
ii)The criteria to be satisfied at the time of the decision included Regulation 487.227 of the Migration Regulations which relevantly then provided that “No evidence has become available since the time of application that the information given or used … to obtain the skills assessment mentioned in subclause 487.223(1) was false or misleading in a material particular”.
iii)Subclause 487.223(1) provided that the “skills of the applicant has (sic) been assessed by the relevant assessing authority as suitable for the applicant’s nominated skilled occupation.”
iv)On 18 January 2010, the first respondent’s delegate refused the visa: The delegate stated as follows:
In accordance with Regulation 487.227(e), the work experience letter from Arthur’s Bavarian Bakehouse provided to Trades Recognition Australia for the purpose of obtaining a suitable skill assessment was false of misleading in a material particular.
As you do not meet the legislative requirements for a Subclass 487 visa as specified in subclause 227, I therefore refuse the grant of a subclass 487 visa to you.
v)On 2 April 2011 Regulation 487.227 was repealed and replaced by Public Interest Criteria (sic) 4020 (PIC 4020) for visa applications made but not finally determined before 2 April 2011.
vi)PIC 4020 provides relevantly that: “There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to: …” In contrast to Regulation 487.227, the reference to a “bogus document” has no requirement that it be relevant to a criterion for the grant of a visa. (emphasis added)
vii)On 2 September 2011, the Tribunal (differently constituted – Member: Ms. Linda Symons; MRT Case Number: 1000604) affirmed the delegate’s decision stating at [69] as follows:
In view of the above, the Tribunal finds that there is evidence before the Tribunal that the first named applicant has given or caused to be given to TRA, a relevant assessing authority, a bogus document in relation to the application for the visa. Accordingly, the Tribunal finds that the first named applicant does not satisfy PIC 4020(1).
viii)On 20 June 2012, the Federal Magistrates Court remitted by consent the Tribunal’s decision, noting that:
The (Minister) accepts that the (MRT) fell into error on the basis that, notwithstanding the materially false or misleading information submitted to Trades Recognition Australia (Assessing Authority), by the applicant, the Assessing Authority was not properly specified by Regulation 2.26B of the Migration Regulations 1994 (Cth) and, in consequence, PIC 4020 could not materially bear on clause 487.214, 487.223, 487.228(a) or 487.230(d) of schedule 2 to the Regulations: see Singh v Minister for Immigration & Anor [2010] FMCA 145 at [65] – [69].
ix)In the present matter, the Tribunal found that there were two bogus documents: the letter about work experience provided to TRA and the TRA assessment. The Tribunal then purportedly relied on PIC 4020 to affirm the delegate’s decision.
x)By applying PIC 4020 and in particular its provisions in regard to “bogus documents” the Tribunal adversely affected the past legal position of the applicant as at the date of the delegate’s decision and prior to the amendment replacing Regulation 487.227 with PIC 4020. This was contrary to law, and is a misconstruction and misapplication of the relevant legislation.
As expressed this ground takes issue with the Tribunal’s application of PIC 4020 to “bogus documents”. It is contended that the Tribunal failed to apply the relevant law in its findings in relation to the work reference given to TRA and in relation to the TRA skills assessment given to the Department. Although there is no reference in the particulars to ground one to IMMI 12/068 (which specified TRA as a relevant assessing authority), in oral submissions Mr Nair, counsel for the Applicant, appeared to contend that the Tribunal erred in applying PIC 4020 and IMMI 12/068 and that applying these instruments was an impermissible attempt to validate the initial decision of the Tribunal.
The Applicant submitted that in finding that she had given a bogus document to a relevant assessing authority in relation to the application for a visa made on 30 June 2009 (and hence that there had been a failure to satisfy PIC 4020(1)) the Tribunal erred because:
i)The TRA only became a relevant assessing authority on 1 July 2012; and
ii)The liability in relation to bogus document was only introduced into the criteria on 2 April 2011;
iii)Prior to 1 July 2012 (and certainly before 2 April 2011) the applicant was not liable and could not be refused the visa on the basis of giving or causing to be given to … a relevant assessing authority … a bogus document.
It was also submitted that in finding that the Applicant gave a bogus document to the Minister in giving the TRA skills assessment dated 14 April 2009 to the Department in connection with the visa application the Tribunal erred because:
i)Prior to the amendment including PIC 4020 in the criteria, (on 2 April 2011), false or misleading information given to the Minister had to be materially relevant to the other criteria for grant of the visa. Bogus documents are not required to be so materially relevant.
ii)Prior to 2 April 2011 the applicant was not liable and could not be refused the visa on the basis of that (sic) she gave a bogus document (the skills assessment) to the Minister.
In relation to each of these impugned findings the Applicant contended that the Tribunal incorrectly purported to destroy past rights and to impose liabilities on her retrospectively and thus adversely affected her past legal position. Particular (x) to ground one refers to the Tribunal adversely affecting the past legal position of the Applicant as at the date of the delegate’s decision (18 January 2010). However the Applicant submitted that the Tribunal had purported to significantly and adversely alter her position as it stood at the time of her application to the Tribunal (28 January 2010).
In written submissions it was also contended that by applying PIC 4020 the Tribunal had impermissibly attempted to validate an invalid decision of the Tribunal (being the 2 September 2011 decision of the Tribunal as originally constituted which was set aside by the Court on 20 June 2012) and of the delegate on 18 January 2010 on the basis that such decisions were made before the Amending Regulations or IMMI 12/068 came into effect. It was suggested that this would offend s.12 of the Legislative Instruments Act 2003 (Cth) (cf Singh at [69] footnote 38). However in light of the acceptance by the First Respondent that neither the Amending Regulations or IMMI 12/068 purported to take affect prior to registration, counsel for the Applicant conceded that s.12(2) of the Legislative Instruments Act did not affect the operation of either the Amending Regulations or IMMI 12/068.
Mr Nair maintained a submission that the Applicant had an accrued right to have the Tribunal review the decision of the delegate in accordance with the legislation and criteria current on 28 January 2010, the date of her application for merits review. Thus it was contended that neither the legislative instrument that made TRA a relevant assessing authority nor the Amending Regulations that introduced PIC 4020 should have been applied to the Applicant as neither was introduced until after 28 January 2010. It was contended that IMMI 12/068, which was registered on 22 June 2012 and commenced on 1 July 2012, did not purport to operate from a date prior to its registration and that TRA was not retrospectively specified as a relevant assessing authority.
It was also submitted that prior to the introduction of PIC 4020(1) on 2 April 2011 the Applicant could not have been refused a visa on the basis of giving a bogus document to the Minister or to TRA, having regard to the more limited scope of former cl.487.227(e) of Schedule 2 to the Migration Regulations. It was submitted that the Tribunal had erred in retrospectively purportedly imposing significant new liabilities and obligations on the Applicant in circumstances where previously the obligation in relation to false and misleading documents was more limited.
The Applicant submitted that the Amending Regulations clearly intended to impose a more onerous liability and did not state “in so many words” that the relevant changes introducing PIC 4020 were to take effect from a date earlier than the date of registration of 1 March 2011 or the date of commencement of the regulation on 2 April 2011.
The Applicant submitted that as the applicable criterion was not relevantly amended until after her application for review was before the Tribunal, it could not be said that PIC 4020 was intended to apply to that review application. In support of this proposition the Applicant relied on the remarks of Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261 at 261; [1957] HCA 7 in relation to the retrospective operation of legislation and also referred to s.7 of the Acts Interpretation Act 1901 (Cth) and the consideration of the concept of accrued right in its predecessor (s.8) in Patti-Mae Lee v Secretary, Department of Social Security (1996) 68 FCR 491; [1996] FCA 1683. Section 7(2)(c) of the Acts Interpretation Act relevantly provides that: “[i]f an Act, or an instrument under an Act, repeals or amends an Act (the affected Act ) or a part of an Act, then the repeal or amendment does not … affect any right, privilege, obligation or liability acquired, accrued or incurred under the affected Act or part”. The Acts Interpretation Act is applied to instruments (such as the Amending Regulations and IMMI 12/068) by s.13 of the Legislative Instruments Act unless the contrary intention appears.
It was contended that as the Applicant had sought review of the delegate’s decision based on earlier visa criteria and before the repeal of such criteria, she had an accrued substantive right to have the review by the Tribunal undertaken by reference to the criteria operating at the time of the delegate’s decision. It was submitted that unless a contrary intention appeared with “reasonable certainty” (see Maxwell v Murphy at 261) an Act (or instrument) changing the law ought not to be understood as applying to past facts or events in such a way as to affect rights or liabilities the law had defined by reference to past events.
It was contended that having regard to s.7 of the Acts Interpretation Act and the approach taken in Lee, reg.5 of the Amending Regulations was not such as to reveal a contrary intention in relation to the application of PIC 4020 to that class of cases consisting of matters before the Tribunal at the time of the introduction of PIC 4020.
Insofar as reg.5 stated that the amendments made by Schedule 3 (including the insertion of PIC 4020) should apply in relation to visa applications “made, but not finally determined” before 2 April 2011 (the date of introduction of the Amending Regulations), the Applicant submitted that this did not demonstrate an intention that the changes should apply to cases in which a decision had been made by a delegate in accordance with earlier criteria which were in force at the time of the application for merits review.
On this basis it was contended by the Applicant that the purported application of PIC 4020 by the Tribunal in effect imposed liabilities on her and destroyed accrued rights. There was said to be a misapplication or misconstruction of the relevant law by the Tribunal on the basis that the Applicant had an accrued right to have her review application determined in accordance with the legislation as it was at the time of the delegate’s decision (sic).
As indicated, the First Respondent agreed that s.12(2) of the Legislative Instruments Act did not affect the operation of either the Amending Regulations or IMMI 12/068 because neither instrument purported to take effect prior to registration (see Hu and Another v Minister for Immigration and Citizenship and Another (2007) 214 FLR 296; [2007] FMCA 1710 at [19] – [24] per Smith FM).
The First Respondent acknowledged that some authorities (for example Lee) had applied the predecessor to s.7(2) of the Acts Interpretation Act in a manner which preserved the right of a person entitled to seek merits review to have that review conducted according to the law in force at an earlier time (such as the time of the review application), although Hu (at [28]) described the authorities as somewhat uncertain. However it was said to be clear that even if it could be said that an accrued right existed, the application of s.7 of the Acts Interpretation Act (which would extend to a legislative instrument by virtue s.13(1) of the Legislative Instruments Act) was subject to a contrary intention (see Re Ross and Others; Ex parte the Australian Liquor, Hospitality and Miscellaneous Workers'Union (2001) 108 FCR 399; [2001] FCA 770 at [64] – [68] and Mahboob v Minister for Immigration and Ethnic Affairs and Another (1996) 64 FCR 398 at 402; [1996] FCA 1319).
There was said to be such a clear contrary intention in this case in reg.5 of the Amending Regulations seen in light of the Migration Act. It was submitted that the Amending Regulations expressed a clear intention that PIC 4020 should apply to visa applications not finally determined at the date of commencement of the Regulations. Regulation 5(2)(a) of the Amending Regulations was said to make it clear that the amendments contained in Schedule 3, including PIC 4020, were intended to apply to visa applications that were made prior to the commencement of the Amending Regulations on 2 April 2011 that were not finally determined within the meaning of s.5(9) of the Act before that date. It was also submitted that when construed in light of s.5(9) of the Act there was no doubt that this extended to cases subject to a pending application for review by the Tribunal at the time the Amending Regulations commenced. Under s.5(9) of the Act an application would not be finally determined where it was still subject to review by the Tribunal.
On this basis it was submitted that the Tribunal was bound to apply the Amending Regulations (including PIC 4020) in its review of the Applicant’s application as the visa application had not been “finally determined” at the date of the commencement of the Amending Regulations. Hence it was said that the Tribunal did not err in the manner contended for by the Applicant in having regard to whether the Applicant had given a “bogus document” to the Minister or to a relevant assessing authority (as referred to in PIC 4020).
It was also contended that the finding in relation to giving a bogus document to the Minister did not depend on TRA being a relevant assessing authority.
In relation to the Tribunal’s finding that the Applicant gave a bogus document to a “relevant assessing authority” (being TRA), it was submitted that IMMI 12/068 had the effect of specifying TRA as an assessing authority after its date of commencement and that therefore, in considering the delegate’s decision upon remittal, the Tribunal was permitted to conclude that providing a bogus document to TRA was providing a bogus document to a relevant assessing authority (see Zhang at [91] and Kaur v Minister for Immigration & Anor [2013] FCCA 1945 at [71]). It was also submitted that Zhang and Kaur confirmed that IMMI 12/068 applied to visa applications not finally determined at the time of commencement. It was acknowledged that there was no reference to s.5(9) of the Act in IMMI 12/068. However it was contended that it was clear that this instrument did not apply in any indirect retrospective way and that it was not compromised by s.12(2) of the Legislative Instruments Act (consistent with the approach taken to IMMI 11/068 in Zhang and to the Amending Regulations in Kaur at [73]).
The First Respondent also submitted that there was no merit in the Applicant’s apparent contention that the Tribunal upon remittal had erred by applying IMMI 12/068 and PIC 4020 in an impermissible attempt to validate the initial decision of the Tribunal which had been quashed on judicial review. It was submitted that neither IMMI 12/068 nor the Amending Regulations purported to validate the earlier decision of the Tribunal, nor did they have that effect. Rather, on their proper construction, the instruments affected the application, at the time of the Tribunal decision, of criteria for the class of visa in issue. It was submitted that the Tribunal was bound to take such criteria into account when considering the issue upon remittal.
Finally, the First Respondent submitted that even if the provision of a bogus document to TRA at the time when the TRA was not properly specified was not within PIC 2040, the Court should not grant relief because there was a separate and independent basis for the Tribunal’s conclusion that the Applicant did not satisfy PIC 4020(1) (and hence the visa criteria in cll.487.228 and 485.224) having regard to the finding that there was a bogus document given to the Minister which was unaffected by any issue in relation to whether TRA was a relevant assessing authority.
Resolution
The Applicant applied for a Class VC visa in which there were two subclasses: Subclass 487 and Subclass 485.
At all relevant times, cl.487.223(1) in Schedule 2 to the Migration Regulations (and its equivalent in cl.485.221) provided that at the time of decision:
The skills of the applicant have been assessed by the relevant assessing authority as suitable for the applicant’s nominated skilled occupation.
At the time the Applicant applied for the visa (30 June 2009) cl.487.227 (and its equivalent in cl.485.223(c)) relevantly provided that at the time of decision:
No evidence has become available since the time of application that the information given or used:
…
(c)to obtain the skills assessment mentioned in subclause 487.223(1) was false or misleading in a material particular.
On 18 January 2010 the Minister’s delegate refused the application for a visa on the basis that the Applicant did not meet the criterion for a Subclass 487 visa in cl.487.227 and the criterion for a Subclass 485 visa in cl.485.223. In particular, the delegate found that the work reference letter from the Bakehouse provided to TRA for the purpose of obtaining a suitable skills assessment was false or misleading in a material particular. The Applicant sought review by the Tribunal on 28 January 2010.
On 2 April 2011 (while the matter was the subject of review by the Tribunal) the criteria applicable to Subclasses 485 and 487 were amended by the Amending Regulations. Relevantly cl.487.227 and cl.485.223 were omitted by item 5 in Schedule 3 to the Amending Regulations and replaced by cl.487.228(a) and cl.485.224(a) which, at the time of the Tribunal’s decision on 15 March 2012, required that the Applicant satisfy a new public interest criterion (PIC 4020) which was also inserted by Schedule 3 to the Amending Regulations.
PIC 4020(1) relevantly provides that:
(1)There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a)the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
…
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australia permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5)In this clause:
"information that is false or misleading in a material particular" means information that is:
(a)false or misleading at the time it is given; and
(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
Note: Regulation 1.03 defines bogus document as having the same meaning as in section 97 of the Act.
Section 97(c) of the Migration Act defines the term “bogus document” as follows:
bogus document in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.
As counsel for the Applicant pointed out, the Explanatory Statement to the Amending Regulations explained that prior to the introduction of new PIC 4020 the power to refuse a visa application on the basis that the applicant had provided false or misleading information was “extremely limited” and related only to false or misleading information provided by a primary visa applicant to satisfy certain specific requirements. It was also open to an applicant to withdraw the false or misleading information and to find an alternative method of satisfying relevant visa criteria. In contrast, in addition to the adoption of a wider approach to the concept of “information which is false or misleading in a material particular”, new PIC 4020 also requires that there be no evidence that the applicant has given or caused to be given a bogus document to certain specified entities, including the Minister, the Tribunal or a relevant assessing authority.
Regulation 5(2) in the Amending Regulations provides that the amendments made by Schedule 3 apply in relation to an application for a visa:
(a)made, but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958), before 2 April 2011; or
(b)made on or after 2 April 2011.
Section 5(9) of the Migration Act is as follows:
For the purposes of this Act, an application under this Act is finally determined when either:
(a)a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7; or
(b)a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed.
Part 5 of the Migration Act deals with review of decisions of delegates of the First Respondent by the Migration Review Tribunal. Part 7 deals with review by the Refugee Review Tribunal.
Section 7 of the Acts Interpretation Act deals with the effect of repeal or amendment of an Act. It is relevantly as follows:
No revival of other Act or part
(1)The repeal of an Act, or of a part of an Act, that repealed an Act (the old Act ) or part (the old part ) of an Act does not revive the old Act or old part, unless express provision is made for the revival.
No effect on previous operation of Act or part
(2)If an Act, or an instrument under an Act, repeals or amends an Act (the affected Act ) or a part of an Act, then the repeal or amendment does not:
(a)revive anything not in force or existing at the time at which the repeal or amendment takes effect; or
(b)affect the previous operation of the affected Act or part (including any amendment made by the affected Act or part), or anything duly done or suffered under the affected Act or part; or
(c)affect any right, privilege, obligation or liability acquired, accrued or incurred under the affected Act or part; or
(d)affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the affected Act or part; or
(e)affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.
Section 13 of the Legislative Instruments Act applies the Acts Interpretations Act to legislative instruments unless a contrary intention appears.
Section 12 of the Legislative Instruments Act provides:
(1)Subject to subsection (2), a legislative instrument that is made on or after the commencing day, or a particular provision of such an instrument, takes effect from:
(a) the day specified in the instrument for the purposes of the commencement of the instrument or provision; or
(b)the day and time specified in the instrument for the purposes of the commencement of the instrument or provision; or
(c)the day, or day and time, of the commencement of an Act, or of a provision of an Act, or of the occurrence of an event, that is specified in the instrument for the purposes of the commencement of the instrument or provision; or
(d)in any other case--the first moment of the day next following the day when it is registered.
Note: There are certain instruments that, by virtue of subsection 55(2), are made before, but treated as having been made on, the commencing day.
(2)A legislative instrument, or a provision of a legislative instrument, has no effect if, apart from this subsection, it would take effect before the date it is registered and as a result:
(a)the rights of a person (other than the Commonwealth or an authority of the Commonwealth) as at the date of registration would be affected so as to disadvantage that person; or
(b)liabilities would be imposed on a person (other than the Commonwealth or an authority of the Commonwealth) in respect of anything done or omitted to be done before the date of registration.
(3)The effect of subsections (1) and (2) on a legislative instrument is subject to any contrary provision for commencement of the instrument in the enabling legislation for the instrument if the enabling legislation is an Act or a provision of an Act.
The Applicant conceded that, in contrast to the position under former cl.487.227, for the purposes of PIC 4020 there is no requirement that a “bogus document” as defined in s.97 of the Act be relevant to a criterion for the grant of the visa (see Batra v Minister for Immigration and Citizenship and Another (2012) 265 FLR 461; [2012] FMCA 544 at [58] and Batra v Minister for Immigration and Citizenship and Another (2013) 212 FCR 84; [2013] FCA 274) and also that in using the words “given or caused to be given” PIC 4020 did not import a mental element (see Vyas and Another v Minister for Immigration and Citizenship and Another (2012) 263 FLR 131; [2012] FMCA 92 at [68]).
For the purposes of this decision it was not disputed that at the time the Applicant gave the work reference to TRA, at the time the TRA made the skills assessment on 14 April 2009 and at the time the skills assessment was given to the Department in connection with the visa application of 30 June 2009, TRA was not properly specified as the relevant assessing authority for the occupation of pastry cook (see Singh - disp2v Minister for Immigration & Anor [2012] FMCA 145, especially at [65] – [69]).
On 2 September 2011 the Tribunal as originally constituted found that the Applicant had given to TRA (a relevant assessing authority) a bogus document in relation to the visa application and hence that she did not satisfy PIC 4020(1). The Applicant sought review by this Court. The matter was remitted by consent on 20 June 2012. The Minister accepted that the Tribunal fell into error as TRA was not properly specified by reg.2.26B of the Migration Regulations and so PIC 4020 could not materially bear on the applicable criteria for a Subclass 487 visa.
However on 1 October 2011 TRA was properly specified by legislative instrument IMMI 11/068 (see Zhang v Minister for Immigration and Citizenship and Another (2012) 271 FLR 65; [2012] FMCA 1011). IMMI 11/068 was revoked by IMMI 12/068 which was registered on 22 June 2012 and commenced on 1 July 2012. It is not in dispute that it was in effect at the time of the decision of the Tribunal as reconstituted.
In relation to a person who applied for a visa before 1 July 2010 (as this Applicant did) for the purposes of reg.2.26B(1)(a) of the Migration Regulations, IMMI 12/068 relevantly specifies the person or body corresponding to each skilled occupation listed in Schedule 1(a) to the instrument as the relevant assessing authority for that skilled occupation. In particular, TRA is specified as the relevant assessing authority for the occupation of pastry cook.
The Applicant did not dispute that IMMI 12/068 properly specifies TRA as the relevant assessing authority and that false or misleading documents now given to TRA are given to a relevant assessing authority for the purposes of PIC 4020.
However, the Applicant submitted that the changes to the applicable visa criteria introduced by the Amending Regulations (in particular the application of PIC 4020) could not be applied to the review of the Applicant’s visa application by the Tribunal as the Amending Regulations did not purport to take effect before the date of registration and the provision in PIC 4020 in relation to bogus documents did not apply at the time of the delegate’s decision or the time of the review application. It was contended that the Applicant had an accrued right to have her application determined by reference to the criteria applicable before the introduction of PIC 4020. In this respect it was submitted (variously) that the Applicant’s right was to have her application determined according to the criteria applicable at the time of her visa application, the time of the delegate’s decision or (as was ultimately suggested) the time of the review application.
First, insofar as the possibility was raised that the Amending Regulations or IMMI 12/068 had no effect because apart from s.12(2) of the Legislative Instruments Act they would take effect before the date of registration and as a result the rights of a person at the date of registration would be affected so as to disadvantage that person, it is not in dispute that neither instrument purports to take effect before the date of registration. Hence no s.12(2) issue arises under the Legislative Instruments Act. Indeed, the Amending Regulations do not purport to remove or alter any rights within s.12(2)(a) as they stood at a past date. It is clear from the commencement provision in reg.5 of the Amending Regulations that the changes that include PIC 4020 are intended to operate only in relation to future decisions about applications for visas. In this sense the Amending Regulations did not seek to operate retrospectively or to alter the past legal position of any visa applicant.
However the Applicant contended that she accrued a right (in the sense considered in Lee) to have the delegate’s decision reviewed by reference to the time of decision visa criteria then applicable (or applicable at the time of the review application), notwithstanding that such criteria had been omitted or replaced by other criteria while the application was before the Tribunal. Reliance was placed on the general law principle as to the retrospective operation of a statute expressed by Dixon CJ in Maxwell v Murphy at 267 and s.7 of the Acts Interpretation Act.
However the general law principle is, as Dixon CJ stated at 267, subject to contrary intention. Similarly, any accrued right to have the delegate’s decision reviewed by reference to repealed visa criterion by virtue of the lodging of an application for review under s.7 of the Acts Interpretation Act (see Lee and Esber v The Commonwealth of Australia and Another (1992) 174 CLR 430; [1992] HCA 20 but cf Re Ross at [44] – [68] and Hu at [28]) would also be subject to contrary intention (see s.13 of the Legislative Instruments Act, Re Ross and Mahboob).
The starting point in resolving this issue is the construction of the instruments in question (see Attorney-General for the State of Queensland v Australian Industrial Relations Commission and Others (2002) 213 CLR 485; [2002] HCA 42 at [128]). In this case there is a clear contrary intention in reg.5 of the Amending Regulations that PIC 4020 is to apply to visa applications not “finally determined” within s.5(9) of the Act before 2 April 2011. As the Applicant’s visa application was still subject to review by the Tribunal under Part 5 of the Act as at 2 April 2011 it had not been finally determined at that date. When construed in light of s.5(9) of the Act and the Act generally, the changes to visa criteria in Schedule 3 to the Amending Regulations (including the criteria which require an applicant to satisfy PIC 4020) are plainly intended to operate with respect to visa applications the subject of review by the Tribunal as at 2 April 2011.
Hence the new time of decision criteria in relation to Subclasses 485 and 487 which applied PIC 4020 were applicable to the Applicant’s application at the time of the Tribunal decision. The Tribunal was bound to apply the Amending Regulations because the Applicant’s visa application had not been “finally determined” at the date of commencement of the Amending Regulations. The fact that it did so was not a misconstruction or misapplication of the relevant law. The Tribunal was not obliged to apply the criteria for the visa as they stood at the time of the visa application, the delegate’s decision, the application to the Tribunal or the first Tribunal decision (insofar as various earlier dates were referred to in the Applicant’s submissions). By analogy with the remarks of Smith FM in Hu at [27], the Applicant had no more than a right to compel the Tribunal to make a decision on whether it was satisfied as to the prescribed criteria which were relevantly in place at the time of the decision. Clause 487.228 (which required the applicant to satisfy PIC 4020) was such a criterion, as was cl.485.224.
There is no merit in any contention that the Tribunal upon remittal erred by applying IMMI 12/068 and PIC 4020 in an impermissible attempt to validate the initial decision of the Tribunal which had been quashed on judicial review. Neither IMMI 12/068 nor the Amending Regulations purported to validate the earlier decision of the Tribunal. Nor did they have that effect. Rather, on their proper construction, the instruments affected the application at the time of the Tribunal decision of criteria for the class of visa in issue. The Tribunal was bound to take such criteria into account when considering the issue upon remittal.
Further, the fact that TRA was not properly specified by reg.2.26B of the Migration Regulations at the time the skills assessment was given to the Minister does not mean that the purported skills assessment was not a bogus document given or caused to be given to the Minister. As counsel for the Applicant acknowledged, in Batra Riley FM found at first instance that a TRA skills assessment that had no legal effect as a skills assessment because at the time of the assessment TRA had no power to make a skills assessment for the purposes of the Migration Act and Regulations, was nonetheless a bogus document within s.97 of the Act as a document the Applicant obtained because of a false or misleading statement (being a false work reference).
I note that on appeal (see Batra v Minister for Immigration and Citizenship and Another (2013) 212 FCR 84; [2013] FCA 274) Murphy J agreed that while the skills assessment was not effective as a skills assessment, it was nonetheless a bogus document within the Act for the purposes of s.103 of the Act (see [54] – [61]). Hence the Applicant had breached s.103 of the Act and triggered the visa cancellation provisions in the Act.
While Batra involved a cancellation of a visa, what was said in relation to construction of the term “bogus document” as defined in s.97 of the Act is in point. The use of bogus documents is contrary to PIC 4020 which (akin to s.103 of the Act) emphasises “the importance of honesty and accuracy in an application for a visa” (Batra per Murphy J at [58]). Similarly, in its reference to bogus document, PIC 4020 focuses attention on the substance of “any ordinary document” given to one of the specified entities. It is not in dispute that the purported skills assessment was a document that was obtained because of a false or misleading statement (the false work reference). The fact that it was of no legal effect as a skills assessment is “immaterial” to whether or not it was a bogus document.
The Tribunal did not err in having regard to whether the Applicant gave or caused to be given such bogus document to the Minister, or in finding that for this reason she did not satisfy PIC 4020 or in finding that hence she did not meet the applicable time of decision criterion in cl.487.228(a) (and its cl.485.224(a) equivalent).
As expressed and as addressed in the Applicant’s submissions, ground one appears to be limited to a contention that the Tribunal erred by applying PIC 4020 and IMMI 12/068 in relation to bogus documents. The earlier criteria applied only to information that was false or misleading in a material particular. This argument was put on the basis that before PIC 4020 was introduced and TRA became a properly specified relevant assessing authority under IMMI 12/068, the Applicant could not have been refused the visa on the basis of giving a bogus document to the Minister or to TRA.
Insofar as this is the Applicant’s argument, it is not made out. The Tribunal’s obligation was to apply the time of decision criteria (including cl.487.228) as they stood at the time of the decision. It was not an error for the Tribunal to have regard to whether the Applicant satisfied PIC 4020(1) in relation to bogus documents. Ground one as pleaded is not made out.
The First Respondent also addressed the possibility that it may have been intended to be contended that as a matter of construction, PIC 4020 could be construed as concerned with giving bogus documents to an entity which, or person who is, at that time, properly specified as a relevant assessing authority.
As the First Respondent acknowledged in relation to the work reference given to TRA there may be an issue as to whether the Tribunal was permitted to conclude that a document was given or caused to be given to a “relevant assessing authority” where the proper specification did not occur until after the document was given to TRA.
The Further Amended Application and the Applicant’s submissions did not assert jurisdictional error on this basis. However as the issue was addressed by the First Respondent, I make the following observations.
Under reg.1.03 of the Migration Regulations, relevant assessing authority “means a person or body specified under regulation 2.26B”. Regulation 2.26B permits the Minister, by an instrument in writing to specify a person or body as the relevant assessing authority for a skilled occupation and one or more countries for the purposes of an application for a skills assessment made by a resident of one of those countries. The Minister must not make such an instrument unless the person or body has been approved in writing as a relevant assessing authority for the occupation by the Education Minister, the Employment Minister.
The Tribunal as originally constituted had found on 2 September 2011 that the Applicant had given or caused to be given to TRA, a relevant assessing authority, a bogus document in relation to the visa application and that she did not satisfy PIC 4020(1). In consenting to remittal the Minister accepted that as TRA was not properly specified, PIC 4020 could not materially bear on cl.487.228(a) of Schedule 2 to the Migration Regulations. TRA was not properly specified at the time the Applicant gave the work reference to TRA or of the time of the first Tribunal decision.
It is not in dispute that IMMI 12/068 (which replaced IMMI 11/068) properly specified TRA as a relevant assessing authority. In para.2 the Instrument specifies relevant assessing authorities for listed skilled occupations “in relation to a person who applied before 1 July 2010.” There is nothing in IMMI 12/068 that is equivalent to the commencement provision in reg.5 of the Amending Regulations or that is otherwise such as to invoke the operation of s.5(9) of the Migration Act. It was not submitted that there was any express indication of a retrospective operation of the specification of TRA as a relevant assessing authority for the skilled occupation in question. Indeed it was accepted that IMMI 12/068 did not purport to take effect before the date of registration and that accordingly no issue arose under s.12(2) of the LIA (see similarly the effect of IMMI 11/068 discussed in Zhang v Minister for Immigration and Citizenship and Another (2012) 271 FLR 65; [2012] FMCA 1011 at [79] – [93]).
Insofar as an issue arose in relation to whether the Tribunal erred in finding the Applicant gave a bogus document to a relevant assessing authority, the First Respondent referred to Kaur and Zhang. In Kaur Driver FM found that where TRA had been properly specified before the Tribunal decision in question, the information provided to TRA could be false or misleading in a material particular as representations in a work reference were “material” both to the TRA assessment and PIC 4020 (at [71]). His Honour was also of the view that PIC 4020 posed an objective test in relation to the meaning of false or misleading (at [63] – [65]). However no issue arose in Kaur as to whether the Applicant had given a work reference “to a relevant assessing authority”.
Similarly in Zhang the issue was not whether the Applicant had given a bogus document to a relevant assessing authority, but rather whether a visa criterion that required that at the time of decision a relevant assessing authority had assessed the skills of the applicant as suitable for his or her nominated occupation was applicable. In Zhang the relevant assessing authority was properly specified before the time of decision. It was held that the criterion was applicable. This does not mean that the specification of TRA as a relevant assessing authority in or after 2011 necessarily had the effect that the Applicant “has given or caused to be given to relevant assessing authority, a bogus document” where that document was given to TRA in 2009.
Beyond these observations I am of the view that having regard to the basis on which ground one is pleaded, this issue does not require determination. Even if the Tribunal erred in concluding that giving a bogus document to TRA in 2009 was giving a bogus document to a relevant assessing authority and even if such error constituted a jurisdictional error, any such error would be immaterial, as the Tribunal found that the Applicant did not satisfy PIC 4020 (and hence cll.487.228 and 485.224) for two reasons.
No error has been established in the Tribunal finding that the Applicant gave a bogus document to the Minister. The fact that the purported skills assessment did not have any effect as a skills assessment was immaterial to a consideration of whether the Applicant satisfied PIC 4020(1) in this respect (and hence cl.487.228 and cl.485.224). The purported skills assessment remained a bogus document (obtained because of false or misleading information) which the Applicant gave to the Minister (see Batra at first instance and on appeal). This was a separate and independent basis for the outcome reached by the Tribunal in relation to PIC 4020(1) and the criteria in cl.487.228 and cl.485.224 Hence the Tribunal has not been shown to be in error in its conclusion that the criteria in cl.487.228(a) and cl.485.224(a) were not met.
Thus, even if it had been properly argued and established that the Tribunal fell into error amounting to jurisdictional error in its finding in relation to the Applicant giving a bogus document to a relevant assessing authority, I would have exercised my discretion to refuse relief (see SZOVB and Othersv Minister for Immigration and Citizenship and Another (2011) 125 ALD 38; [2011] FCA 1462 at [56]).
Insofar as the parties addressed the issue of whether it would be futile to grant relief (see Lee and Others v Minister for Immigration and Citizenship and Another (2007) 159 FCR 181; [2007] FCAFC 62) such submissions proceeded on the basis that the Court may find that ground one as pleaded was made out. The Applicant’s failure to establish this ground means that the issues in relation to the application of a “forward-looking test” in the exercise of the discretion to refuse relief considered in Lee do not arise for consideration.
Ground two
Ground two in the further amended application is that the Tribunal failed to take into account a relevant consideration. The particulars are as follows:
i)Regulation 487.223 provided that at the “time of decision” the skills of the applicant had been assessed by the relevant assessing authority.
ii)The applicant gave evidence to the Tribunal that she was unable to provide a relevant skills assessment through no fault of her own but because the system set up by Trades Recognition Australia (“TRA”) would not allow her to do so (CB 217 to 218 at [55]; CB 199 to 200; CB 201 to 202).
iii)The Tribunal did not reject this evidence but said that the Tribunal was not authorised to waive this requirement.
iv)The Tribunal failed to consider whether in the circumstances the requirement to satisfy Regulation 487.223 was a requirement not authorized by the Migration Act because it was not practicable or certain in operation.
The Applicant acknowledged that cl.487.223 required that at the time of decision her skills had been assessed by the relevant assessing authority as suitable for her nominated skilled occupation. However it was pointed out that the Applicant sent a facsimile to the Tribunal on 12 February 2013 (in response to a s.359A letter of 24 January 2013) submitting that cl.487.223 “should be set aside as it is not workable as there is no direct pathway for assessment of qualifications for the purpose of SC487”. She also claimed she tried to register online for the job ready program (even though she said this was not designed for Subclass 487) but that the system would not let her. She claimed in her letter to the Tribunal that she called TRA but that they were unable to assist. She claimed TRA advised her not to declare her previous file number in the online application form, but that she understood that not declaring her previous file number was a fraud. She also claimed that paper-based applications could not be submitted to TRA. In her facsimile to the Tribunal the Applicant attached a screen printout of a computer screen said to indicate her attempt to register by providing a TRA applicant file number. On the printout was recorded “We are unable to match your details with any applications recorded in the database”. The Applicant claimed the criterion in cl.487.223 was not workable and asked the Tribunal to set aside this regulation or to consider it as met.
In its reasons for decision the Tribunal set out this evidence. It referred to the Applicant’s claim that she had not been able to obtain a skills assessment because the TRA systems and program changes would not allow her to do so. It stated that it had carefully considered this evidence, but found that there was no provision in the Regulations providing the Tribunal with the discretion to waive the requirement that the Applicant satisfy cl.487.223. As indicated, the Tribunal found there was no evidence of a current skills assessment and that the Applicant did not satisfy cl.487.223.
The Applicant submitted that the Tribunal had failed to take into account a relevant consideration, in that it failed to consider whether cl.487.223 was, in the circumstances, not authorised by the Act because it purported to compel the Applicant to comply with requirements that were not practicable or certain in operation. Reference was made to Dai v Minister for Immigration and Citizenshipand Another (2007) 165 FCR 458; [2007] FCAFC 199 per Gyles J at [34] – [36] in support of the proposition that if a criterion is not capable of being fulfilled or satisfied then it was not one authorised by the Act.
It was also submitted that despite the Applicant’s inability to satisfy cl.487.223 at the time of the Tribunal’s purported decision, it was not certain that she would not be able to satisfy this requirement or that the Tribunal would not hold that this requirement was not one authorised by the Act if this matter was remitted so that it would not be futile to remit this matter (see Lee).
The First Respondent submitted that insofar as the Applicant’s contention was that the Tribunal erred in failing to consider whether a particular visa requirement was ultra vires, there was no jurisdictional error in the Tribunal failing to consider such a legal issue, particularly a legal issue that was not raised before it. In any event, it was submitted that it had not been established that the criterion in question was ultra vires on the basis that it was incapable of satisfaction.
This ground is not made out. Clause 487.223(1) is a time of decision criterion which requires that “The skills of the applicant have been assessed by the relevant assessing authority as suitable for the applicant’s nominated skilled occupation”.
As the Tribunal recorded, the Applicant did not seek to rely on the revoked skills assessment of 14 April 2009 and was not able to provide evidence of a current skills assessment. It was in these circumstances that the Tribunal found that she did not satisfy cl.487.223.
Ground two is expressed as a contention that the Tribunal failed to take into account a relevant consideration. As pointed out by the First Respondent, the Applicant did not contend in written submissions that the Tribunal failed to consider the evidence she submitted in response to the s.359A letter. Insofar as such suggestion appeared to be raised in oral submissions for the Applicant, it is clear from the Tribunal reasons for decision that it did consider such evidence and that it understood the issue the Applicant raised. However the Tribunal correctly came to the conclusion that it had no discretion to waive the requirement that the Applicant hold a valid skills assessment. In these circumstances it did not otherwise have to make a finding on the “evidence” proffered by the Applicant in response to the s.359A letter. It has not been established that the Tribunal failed to consider a claim made by the Applicant or an integer of a claim or a matter otherwise constituting a mandatorily relevant consideration (see Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 and Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCA 184).
Further, as the First Respondent submitted, the Tribunal did not err in failing to consider whether the particular visa requirement was ultra vires. Such a legal issue was not an integer of the Applicant’s claim. It was not a claim raised squarely on the material before the Tribunal (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263). The Tribunal has no power to “set aside” visa requirements. It understood that the Applicant was in effect suggesting that it should waive cl.487.223. It considered this suggestion, but found it had no such discretion in relation to the requirement that the Applicant satisfy cl.487.223.
It is the case that if cl.487.223 was incapable of satisfaction the Court may find that such requirement was not authorised by the legislation in the sense considered in Dai. This is not in fact the basis on which ground two is expressed. However, insofar as the Applicant’s contention is that cl.487.223 is ultra vires because it was not practicable for the Applicant to comply with the condition therein, this has not been established on the evidence before the Court.
In Dai what was in issue was a condition (condition 8202) that required the visa holder to achieve an academic result that was certified by his or her education provider to be at least satisfactory. Non-compliance with such condition by a visa holder was a trigger for cancellation of the visa. An issue arose as to how a visa holder could comply or fail to comply with the condition if required to provide certification over which the visa holder had no control (Dai at [8]) per North J. His Honour held that the visa holder was the subject of the condition and that it was the visa holder who must comply (at [17]). North J held (at [19]) that there was “no act of the visa holder which could satisfy the requirement of condition 8202. The achievement of the academic result was irrelevant unless certified [by the education provider]. No matter what the student did or did not do, the absence of a certificate would be fatal.” Thus it was said that there was no way the visa holder could comply with the condition and that it was not possible for the Minister to be satisfied that the visa holder had not complied with condition 8202.
Relevantly, Gyles J did not accept that a condition that depended on a visa holder holding certification of a result by the education provider (or some other form of qualification evidenced by certification) was necessarily ultra vires (at [27] – [29]) but was of the view that the particular form of the condition in question was ultra vires, at least in so far as the condition, “[o]n pain of cancellation of the visa, … compelled compliance by the visa holder with requirements that were not practicable or certain” (at [34]). However in reaching this conclusion his Honour relied on what was said by Kitto J in Television Corporation Limited v The Commonwealth of Australia and Another (1963) 109 CLR 59 at 70; [1963] HCA 30 to the effect that the Minister’s power to impose conditions (breach of which would render a person liable to have a licence cancelled) was limited to the imposition of conditions that were “reasonably certain”, that is conditions that were such that the Court could say with reasonable certainty “in what events forfeiture will be incurred”. In contrast, in this case what is in issue is a criterion for the grant of a visa, not a condition to which a visa is subject and breach of which is a basis for cancellation. Non-satisfaction of this criterion does not give rise to a power to cancel a visa. Rather, the Tribunal must be positively satisfied that the Applicant held the relevant skills assessment in order to grant the visa (cf North J in Dai at [18] – [20]).
The Applicant’s contention appears to be that the criterion in cl.487.223 is invalid because of difficulty which she allegedly experienced, particular in relation to her own experience in accessing the TRA website. In her letter to the Tribunal the Applicant appeared to take issue with TRA’s failure to recognise what she claimed was her TRA applicant file number. However there is no evidence as to why the error (if it was in fact an error) occurred in the Applicant’s particular case. Nor is there any evidence or indication that any such difficulty would apply more generally to other applicants for skills assessment. The court cannot be satisfied on the evidence before it that no Subclass 487 visa applicant could comply with the requirement in cl.487.223 or that its requirements were not practicable or certain in the sense considered in Dai.
Ground two is not made out. As neither ground has been established the application should be dismissed.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 19 December 2013
- AGLC
- KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2209
- Case
- [2013] FCCA 2209
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the delegate of the Minister had failed to take into account relevant considerations and taken into account irrelevant considerations when assessing Ms Kaur's claims for protection. Specifically, the Court was asked to determine if the delegate had properly considered the evidence presented by Ms Kaur regarding the risk of harm she faced upon return to her country of origin, and whether the delegate's assessment of this risk was reasonable and supported by the evidence.
Judge Barnes found that the delegate had failed to adequately consider crucial aspects of Ms Kaur's evidence, particularly concerning the specific nature of the threats she faced and the potential for her to be targeted upon return. The Court reasoned that a failure to give proper weight to such evidence amounted to a failure to take into account relevant considerations, thereby vitiating the decision-making process. The legal principle applied was that administrative decisions must be based on a proper consideration of all relevant evidence and that a failure to do so renders the decision legally flawed.
The Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.
Orders
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Evidence
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