Kaur v Minister for Immigration

[2017] FCCA 2921

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2921

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Skilled (Subclass 885) visa application – failure of primary applicant to satisfy requirement of having a qualifying score of “120 points” – assessed by Delegate and Administrative Appeals Tribunal as having only attained a score of 110 points under cl.885.221 – application for judicial review of Administrative Appeals Tribunal decision affirming Delegate’s refusal of visa – no jurisdictional error established – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.92, 93, 94, 95, 96

Migration Regulations 1994 (Cth)

First Applicant: MANINDER KAUR

Second Applicant: RUBALJIT SINGH UPPAL

Third Applicant: JASLEEN KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1573 of 2016

Judgment of: Judge Dowdy

Hearing dates: 8 March 2017 & 17 March 2017

Delivered at: Sydney

Delivered on: 28 November 2017

REPRESENTATION

The First Applicant did not appear at either hearing.

The Second Applicant appeared in person at the first hearing.

The Third Applicant appeared in the proceeding through her Litigation Guardian, the First Applicant.

Counsel for the Respondents: Ms G Doyle

Solicitors for the Respondents: Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS

1. The Application filed in this Court on 22 June 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1573 of 2016

MANINDER KAUR

First Applicant

RUBALJIT SINGH UPPAL

Second Applicant

JASLEEN KAUR

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The First Applicant in this proceeding is a female citizen of India aged 33 years, having been born on 11 November 1984.

2. The Second Applicant is a male citizen of India, the husband of the First Applicant and aged 32 years, having been born on 10 June 1985.

3. The Third Applicant is a female citizen of India, the daughter of the First and Second Applicants and aged 5 years, having been born on 2 July 2012.  

4. By Application filed in this Court on 22 June 2016 the First Applicant, Second Applicant and Third Applicant (collectively the Applicants) seek to quash and impliedly have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (the Tribunal), dated 27 May 2016, which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 26 September 2014, refusing to grant to the them Skilled (Residence) (Class VB) (Subclass 885) visas (Skilled visa(s)).

5. The First Applicant as the primary applicant was the only member of her family seeking to satisfy the primary criteria for the grant of a Skilled visa pursuant to cl.885 of Sch.2 to the Migration Regulations 1994 (Cth) (the Regulations) under the Migration Act 1958 (Cth) (the Act), with the Second and Third Applicants as secondary applicants being dependent upon the success of the First Applicant. The First Applicant nominated her Skilled occupation as that of welfare worker.

6. The First and Second Applicants lodged the Skilled visa application on 26 June 2010 with the Third Applicant being added on or about 24 April 2014 after her birth as a further secondary applicant.

7. In order to satisfy the primary criteria for the grant of a Skilled visa the First Applicant was required to meet cl.885.221 which relevantly required her to have a qualifying score under the point and score system established under ss.92 – 96 of the Act. Relevantly ss.92 – 94 and 96 provided as follows:

   Subdivision B—The “points” system

   92   Operation of Subdivision

   This Subdivision has effect where one of the prescribed criteria in relation to a visa of a particular class is the criterion that the applicant receives the qualifying score when assessed as provided by this Subdivision.

   93Determination of applicant’s score

   (1)The Minister shall make an assessment by giving the applicant the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant.

   (2)In this section:

   prescribed means prescribed by regulations in force at the time the assessment is made.

   94Initial application of “points” system

   (1)An applicant whose assessed score is more than or equal to the applicable pass mark at the time when the score is assessed is taken to have received the qualifying score.

   (2)   An applicant whose assessed score is less than the applicable pool mark at the time when the score is assessed is taken not to have received the qualifying score.

   (3)If an applicant’s assessed score is more than or equal to the applicable pool mark, but less than the applicable pass mark, at the time when the score is assessed:

   (a)the Minister must, unless the application is withdrawn, put the application aside and deal with it in accordance with section 95; and

   (b)if the Minister puts the application aside—the Minister is taken to have put the application into a pool.

   (4)   Where, in accordance with this section, the Minister puts an application aside, he or she shall be taken for all purposes not to have failed to make a decision to grant or refuse to grant a visa.

   96   Minister may set pool mark and pass mark

   (1)  The Minister may, from time to time, by notice in the Gazette, specify, in relation to a class of visas, the pool mark for the purposes of this Act and the regulations.

   (2)The Minister may, from time to time, by notice in the Gazette, specify, in relation to applications for visas of a particular class, the pass mark for the purposes of this Act and the regulations.

   (3)  A notice under subsection (1) or (2) operates to revoke the previous notice under that subsection in relation to the same class of visas and also operates as a variation of the mark specified in the previous notice.

   (4)  The Minister shall cause copies of each notice under subsection (1) or (2) to be laid before each House of the Parliament within 15 sitting days of that House after the publication of the notice in the Gazette.

   (5)This Act does not prevent a pool mark and a pass mark from being equal.

   (6)This Act does not prevent a pool mark and a pass mark from being varied independently of each other.

   (emphasis added)                 

   The effect of these sections is to provide for the application of a point system under which the applicant for a relevant visa is given an assessed score based on the prescribed number of points for particular qualifications or attributes which then go toward satisfying the required pass mark for the relevant qualifying score.

8. Under s.96 of the Act the Minister, by Legislative Instrument IMMI 12/017, had specified for the purposes of reg.2.26AA of the Regulations that the pass mark as a qualifying score for the Skilled visa for which the First Applicant had applied was 120 points. The effect of reg.2.26AA at the relevant time was to prescribe points for each of the qualifications or attributes set out in Sch.6B to the Regulations.

Decision of Delegate

1. By her Decision Record dated 26 September 2014 the Delegate found that at the time of decision the First Applicant did not have the prescribed qualifying score of 120 points required for the grant of a Skilled visa, having only attained 110 points. The Delegate therefore refused to grant her a Skilled visa and this meant that the Second and Third Applicants as secondary applicants were also necessarily refused Skilled visas.

Tribunal Hearing and Decision

1. The Applicants applied for merits review of the decision of the Delegate on 15 October 2014 and appeared before the Tribunal on 11 April 2016 to give evidence and present arguments. They had previously given the Decision Record of the Delegate to the Tribunal.

2. At the hearing the Tribunal discussed with the First and Second Applicants the information contained in the Decision Record of the Delegate and they went together through each assessment and allocation of points for the relevant qualifications set out in Sch.6B to the Regulations. At [9] of its Decision Record the Tribunal recorded that the First Applicant agreed that she was eligible for 110 points.

3. The Tribunal then proceeded to assess for itself the points attained by the First Applicant under Sch.6B. The Tribunal’s assessments appear between [10] – [47] of its Decision Record. The Tribunal found that at the time of its decision the Applicant had achieved the same point score as had been attained by her at the time of the Delegate’s decision, namely she was entitled to a maximum of 110 points. Accordingly, as the qualifying score for the Applicant was 120 points, the Tribunal found that the First Applicant had not met the requirements of cl.885.221 and it affirmed the Delegate’s decision not to grant Skilled visas to the Applicants.

Application and Hearings in This Court

Grounds

1. The Grounds of the Application are as follows:

   1.The Tribunal error by not taking into account Australian employment qualification into account.

   PARTICULARS

   Paragraph no 48 of the subject decision.

   2.The Tribunal error by not taking into account offer of employment and failed to allocate points under Part 6B.7 Occupation in demand Qualification.

   PARTICULARS

   Paragraph 33 of subject decision.

   (errors in original)               

Two Hearings

1. On 7 October 2016 the final hearing was appointed for 8 March 2017.

8 March 2017

1. On 8 March 2017 the Second Applicant appeared but not the First Applicant. The Second Applicant made an application for an adjournment on the basis that the First Applicant had “some problem with her leg” and had not been able to go to work for the last three or four days. He tendered a pro forma Certificate for Incapacity for Work dated 7 March 2017 from a Dr Bisha which stated that the First Applicant was unfit for work from 7 March 2017 to 8 March 2017 because she had an infected lump in her right leg which made her unfit to attend Court or go to work.

2. I regarded the medical certificate as deficient, inadequate and not giving any proper reason why the First Applicant could not be present in Court and meaningfully participate in the Court hearing. There was no evidence that she would have been unable to afford a taxi or Uber service. The business of this Court would be rendered quite impossible if applicants could obtain adjournments on the basis of such certificates. The Judges of this Court are booked out with migration cases until at least mid-2019 and I considered that it was in the interests of justice that the hearing date not be entirely wasted and simply adjourned.

3. After I had refused the adjournment application the Second Applicant informed me that he could not run his case because he had not brought any papers along with him and he wanted his wife, the First Applicant, to be present.

4. In these circumstances I asked Ms Doyle, who appeared for the Minister, to make the her submissions and then asked the Second Applicant to advise the Court as to when his wife would be able to appear in Court, and he replied that she could do so in the following week. So, in order to remove any possible prejudice to the Applicants from proceeding in this way, at the end of Ms Doyle’s submissions I adjourned part heard, with the further hearing of the matter to take place on 2pm on Friday 17 March 2017.

17 March 2017

1. At the further hearing on 17 March 2017 neither the First nor Second Applicant appeared.

Consideration

Ground 1 (see [13] above)

1. At [48] of its Decision Record the Tribunal summarised its previous assessment at [26] – [28] of the points attained by the First Applicant for the relevant qualifications under Sch.6B.5, recording that it gave her nil points of a possible 10 points for the qualification of Australian Employment Qualifications. These 10 possible points were available if the First Applicant had been employed in Australia in her nominated Skilled occupation or a closely related Skilled occupation for a period totalling at least 12 months in the 48 months immediately prior to 26 June 2010 (see Item 6B51) or, alternatively, if she had completed a professional year in Australia in her nominated Skilled occupation or a closely related Skilled occupation in the same time period (see Item 6B52).

2. However, the fact of the matter is that the First Applicant had not claimed or provided any evidence that she had been employed in Australia in her nominated Skilled occupation or a closely related Skilled occupation. In the relevant section of her Skilled visa application form she had specifically denied that she had been employed in Australia in her nominated Skilled occupation or a closely related Skilled occupation for 12 out of the 48 months immediately preceding the lodging of the Skilled visa application on 26 June 2010.

3. Further, in her personal Particulars Form 80 emailed to the Department of the Minister by the First Applicant on 22 April 2014 she had listed her work experience in Australia as being:

   a)a shop assistant and customer service assistant for Gulten in Parklea Market from March 2008 to July 2011;

   b)a packer for Gelatissimo Manufacturing Pty Ltd from November 2013 to December 2013; and

   c)in ongoing employment as a shop assistant and customer service assistant at McDonalds, Granville from December 2013.

4. The First Applicant’s denial noted in [21] above and the particulars given by her concerning her previous employment in Australia are entirely consistent with [27] of the Decision Record of the Tribunal which, with reference to the availability to the First Applicant of points for Australian Employment Qualifications under Sch.6B.5, recorded as follows:

   [27]The applicant has not claimed or provided any evidence that she was employed in Australia, in the nominated occupation or a closely related skilled occupation, for a period totalling at least 12 in the 48 months immediately before the day on which the application was lodged, or that she had completed a professional year in Australia.

   [28]Therefore, the applicant is not entitled to any points under this part.

5. The Applicants have failed to establish that the Tribunal was wrong in finding that the First Applicant was not entitled to any points under Sch.6B.5 and in my view this Ground fails to establish that the Tribunal’s decision was affected by jurisdictional error.

Ground 2 (see [13] above)

Allocation of Points Under Sch.6B.7

1. At [33] – [34] of its Decision Record the Tribunal assessed and found that the First Applicant was not entitled to any points under Sch.6B.7 out of a possible 20 points, with respect to nomination of a migration occupation in demand as specified by a Legislative Instrument.

2. In the relevant section of her Skilled visa application form the First Applicant had specifically denied that her nominated occupation was included in the list of migration occupations in demand. This denial was entirely consistent with [33] of the Decision Record of the Tribunal which stated as follows:

   Occupation in Demand Qualification

   [33] Points may be awarded under this Part if the applicant has nominated a migration occupation in demand (as specified in an instrument), and has been employed in that occupation or a closely related skilled occupation for at least 12 of the 48 months immediately preceding the visa application date. Additional points are available if the applicant has an offer of full time employment in certain organisations. The applicant is not claiming and there is no evidence that she has been employed in an occupation in demand for at least 12 of the 48 months immediately preceding the visa application.

   (emphasis supplied)  

Tribunal Failing to Take Into Account an Offer of Employment

1. I make the assumption that the reference to an “offer of employment” in this Ground is to the First Applicant having provided to the Tribunal, at the hearing before it, an undated Form 1277 entitled Application for Sponsorship under General Skilled Migration (Form 1277). The provision of that document led to the Tribunal at [52] – [54] of its Decision Record assessing the First Applicant against the requirements of a Subclass 886 (Skilled – Sponsor) visa (Sponsor 886 visa), which is a visa related to the Skilled visa under cl.885.

2. First, I note only to put this issue out of the way that the Form 1277 could not, for the purposes of the Skilled visa application, have gained any points for the First Applicant under Sch.6B.12 in relation to Designated Area Sponsorship Qualifications, because that qualification only applied to applications for Subclass 475 and Subclass 487 visas whereas the First Applicant had applied for a Subclass 885 visa.

3. Second, in any event the Form 1277 could not have led to satisfaction of the time of decision criteria required by cl.866.222(3), because:

   a)there was no independent evidence otherwise before the Tribunal that the supposed sponsor was over the age of 18 years and:

   i)an Australian Citizen; or

   ii)an Australian permanent resident; or

   iii)eligible New Zealand citizen; and

   usually resident in Australia;

   b)on the face of the Form 1277 the supposed sponsor was said to be a first cousin of the First Applicant, and therefore not related to the First or Second Applicants in the degrees required by cl.886.222(3)(a)(iv); and

   c)there appears to have been no evidence that the Minister had accepted the sponsorship as required by cl.886.222(3)(b).

4. In these circumstances the Tribunal at [52] – [54] found as follows:

   Assessment Against Subclass 866

   [52]The applicant provided the Tribunal with an unsigned and undated Form 1277 from a person claiming to be the applicant’s first cousin. In the course of the hearing the Tribunal noted that there is no corroborative evidence in support of the Form 1277 relating to details of the sponsor, such as, whether or not the sponsor is an Australian citizen, the age of the sponsor, the residence of the sponsor and the relationship to the applicant.

   [53]Moreover the Tribunal indicated to the applicant that at the relevant time, the sponsor had to be related to the applicant such as, a parent, a child an adopted child or a step child, or a brother or a sister, an adoptive brother or sister or a step-brother or a step-sister, an aunt or uncle or an adoptive aunt or uncle, or a step-aunt or step-uncle, or a nephew or niece, an adoptive nephew or niece or a step-nephew or a step-niece. The Tribunal indicated that a first cousin is not a related person for the purposes of the relevant Part of cl.866.222. The applicant indicated to the Tribunal that she thought the Tribunal could accept a first cousin. The Tribunal reiterated that a first cousin is not a related person and the Tribunal has no discretion to accept the first cousin as a related person.

   [54]Therefore, the Tribunal finds that the Applicant does not meet cl.866.222.

5. In my view the Applicants have failed to establish that the Tribunal was legally wrong in finding that the First Applicant was not entitled to any points for a qualification under Sch.6B.7 for the purposes of the Skilled visa or that the First Applicant was not entitled to a Sponsor 886 visa and have failed to establish that the Tribunal’s decision was affected by jurisdictional error.

Conclusion

1. For the reasons given above, I cannot discern that the Tribunal committed any jurisdictional error and the Application must accordingly be dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  28 November 2017