Kaur v Minister for Immigration

[2013] FCCA 1945

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1945

Catchwords:
MIGRATION – Application for judicial review of a decision of the Migration Review Tribunal – no error established – application dismissed with costs.

Legislation:

Migration Act 1958 (Cth), ss.357A(3), 362B & 474

Migration Regulations 1994 (Cth), cl.485.221

Minister for Immigration and Citizenship v Li (2013) 297 ALR 225; [2013] HCA 18
Klein v Domus Pty Ltd (1963) 109 CLR 467
Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355

Applicant: HARINDER KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 131 of 2013

Judgment of: Judge Simpson

Hearing date: 25 October 2013

Date of Last Submission: 25 October 2013

Delivered at: Adelaide

Delivered on: 25 October 2013 (ex tempore)

REPRESENTATION

Applicant: In person

Counsel for the Respondents: Mr Paul D'Assumpcao

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The name of the first respondent be changed from Minister for Immigration and Citizenship to Minister for Immigration and Border Protection.

2. The applicant’s application for judicial review is dismissed.

3. The applicant do pay the first respondent’s costs in the sum of SIX THOUSAND, SIX HUNDRED AND FORTY SIX DOLLARS ($6,646).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 131 of 2013

HARINDER KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(settled ex-tempore reasons)

Introduction

1. The applicant appeared today and was provided with the services of an interpreter.  As the applicant has a reasonable command of the English language, the interpreter has only been needed when the applicant indicated that she was having some difficulty.  The interpreter has also assisted the Court in situations where I had been unable to understand clearly what the applicant was saying to the Court.

2. At the commencement of the hearing, the applicant indicated that she had not received the Outline of Submissions of the first respondent.  The first respondent had sent the submissions to the last known address of the applicant.  It appears from what the applicant had to say that the applicant had changed her address without advising the first respondent.  I therefore adjourned the matter briefly for the applicant to read the first respondent’s submissions with the assistance of the interpreter. 

3. The application that is before me is an application under the Migration Act 1958 (Cth) (“the Act”) for review of a decision of the Migration Review Tribunal. The Migration Review Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship not to grant the applicant a Skilled (Provisional) (Class VC) subclass 485 visa.

4. To succeed on the application the applicant has to identify a jurisdictional error in the Tribunal’s decision or procedure. For the reasons that follow, I find that the applicant has failed to do so and that therefore the Tribunal’s decision remains a privative clause decision within the meaning of s.474 of the Act.

Background

1. It is helpful to look at the background to the matter.

2. The applicant is an Indian national.  She lodged an application for a visa on 8 December 2010. 

3. On 19 December 2011 an officer of the Department of Immigration and Citizenship,(i.e., the delegate) requested further information from the applicant, namely, a skills assessment from an assessing authority in accordance with the requirement specified in cl.485.221(1) of the Migration Regulations 1994 (Cth). The clause identifies one of the criteria that the applicant was required to meet in order to be granted the visa.

4. On 28 March 2012, the delegate refused the application.  The central reason leading to the delegate’s decision was that the applicant had not provided evidence as requested by the Department as referred to earlier in these reasons. 

5. On 7 March 2013, the Tribunal, by letter, invited the applicant to appear before it on 10 April 2013 so that she could provide evidence and present argument relating to the issues arising in the case. The letter also sought any evidence that the applicant wished to rely on to demonstrate that she met the requirements of cl.485.221. The letter went on to say that the applicant should address:

   “… in particular whether your skills for your nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation. 

   If you intend to ask the Tribunal to defer making its decision pending such evidence being provided, please provide evidence to demonstrate that you have taken all necessary steps to secure the assessment from the relevant assessing authority, as the Tribunal may take that information into account in considering whether or not to defer making a decision on your case. 

   The Tribunal will only change this hearing date for good reason.  Please contact the Tribunal immediately if you are unable to attend the hearing on this date.  Please note that if you fail to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it…”

6. On 27 March 2013, the applicant asked the Tribunal to defer the hearing on the basis that she was going to undertake an IELTS (International English Language Testing System) test.  She informed the Tribunal that she was going to undertake the test on 27 April 2013 and would receive the results two weeks after the examination. 

7. On 2 April 2013, the Tribunal member instructed a Tribunal officer to advise the applicant that the request for a deferral had been refused.  On 3 April 2013, the Tribunal officer emailed the applicant in the following terms:

   “Dear Ms Kaur,

   The Tribunal has been unable to speak to you this afternoon. 

   I am therefore sending you this courtesy email to advise that the Tribunal member has reviewed your request for postponement of your scheduled hearing. 

   The Tribunal Member has carefully considered the information you have provided and has decided to refuse your request for postponement and the hearing will proceed as previously advised for 10 April 2013 at 10.30am (SA time).  At the hearing you will have the opportunity to further discuss your case with the Tribunal Member and your request for the Tribunal to defer making its decision. 

   Yours sincerely,

   Ranko”

   (emphasis added)

8. On 10 April 2013, the Tribunal held a hearing.  The applicant did not appear.  The Tribunal gave its reasons for decision that day. 

9. In the Tribunal’s Statement of Decision and Reasons, the Tribunal set out the background facts and procedural history, including the applicant’s request for the Tribunal to delay making its’ decision.  It relevantly stated as follows:

   “…

   9.Ms Kaur did not attend the hearing at the allocated time.  I asked the registry to attempt to contact Ms Kaur by telephone to find out why she had not attended, but she did not answer.  In these circumstances, I am empowered to deal with the review without taking any further action to allow or enable the applicant to appear before me, although I am not bound to do so. (see s.362B of the Act).

   10.In this case, I have decided to deal with the application for review without taking any further action to allow Ms Kaur to appear before me.  I have done this because I know Ms Kaur was aware of the hearing by virtue of her request that I postpone it (which I refused).  A further consideration influencing my decision to deal with the review without allowing Ms Kaur to appear before me is that in my letter to her of 7 March 2013, I expressly asked her to provide the evidence required to obtain a favourable outcome from the process; namely, a skills assessment.  Noting that this evidence was also requested by the Department on 19 December 2011, and its absence was the reason the visa had been refused, I infer that Ms Kaur has not provided it to me in accordance with my letter because she is unable to.  In these circumstances, I see no good reason to delay making my decision on the review.

   …”

10. The Tribunal went on to consider more directly whether the applicant’s skills had been assessed as suitable for her nominated skilled occupation.  It observed, by reference to the applicant’s visa application, that she had applied for a subclass 485 visa with the nominated occupation of ‘graphic pre-press trades worker’.  The assessing authority was cited in the application as ‘Trades Recognition Australia’.  A receipt number was provided.  The Tribunal remarked that the receipt number suggested that the applicant might have applied for a skills assessment. 

11. After describing how the criterion in cl.485.221 might ordinarily be fulfilled by providing certain documentation, the Tribunal stated that no such documentation was before it. The Tribunal said that it was not satisfied that the applicant met cl.485.221. The Tribunal also considered whether the applicant met the criteria for a subclass 487 visa but concluded that a valid application had not been made. The Tribunal concluded by affirming the decision under review.

The hearing in this Court

1. On 8 May 2013, the applicant applied for judicial review in this Court.  The application did not contain any grounds of review.  I raised this defect in the application with the applicant.  The applicant has been unrepresented throughout.  In my view, the applicant faces a significant obstacle in seeking to establish jurisdictional error and to thereby succeed on the review. 

2. The Tribunal is obliged to fairly exercise its core function of reviewing afresh and on the merits the decision concerning the visa application.[1].

   [1]     Minister for Immigration and Citizenship v Li (2013) 297 ALR 225; at [63] – [76].

3. In the circumstances of this case, the Tribunal’s decision to proceed to hearing without affording the applicant a further adjournment was, in my opinion, exercised reasonably and fairly.  No jurisdictional error is shown by this action of the Tribunal.  In Li’s case, the High Court stated that the discretionary power conferred upon the Tribunal to adjourn a review that it is undertaking, is to be exercised according to a standard derived in part from s.357A(3) of the Act, but also from a presumption of law, namely, that the legislature is taken to intend that a discretionary power statutorily conferred will be exercised reasonably. Further, the Court stated[2] that the legal standard of reasonableness must be the standard indicated by the true construction of the statute according to the orthodox approach enunciated by Dixon CJ in the case of Klein v Domus Pty Ltd[3] and reiterated in the case of Project Blue Sky Inc. v Australian Broadcasting Authority[4].  This approach would take into account the scope and purpose of the statute conferring the discretionary power and its real object.[5] 

   [2]     At [64] – [67].

   [3] (1963) 109 CLR 467 at 473.

   [4] (1998) 194 CLR 355.

   [5]     [66]; [24]-[26], [109].

4. In my opinion, the Tribunal clearly appreciated the difference between the existence of the power in s.362B and the discretion to exercise it. It comprehensively explained the reasons for refusing the adjournment. The explanation does not betray the standard of reasonableness required of the Tribunal. It was not arbitrary, vague or fanciful. The Tribunal’s conclusion that there was no evidence before it regarding a skills assessment was clearly open for it to make. It correctly stated that that evidence was an “essential criterion for the grant of a subclass 485 visa”.

5. The application is clearly without any merit. 

6. The application should be dismissed with costs.  Costs will be fixed in the sum of $6,646.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date: 27 November 2013