KAUR v Minister for Immigration

[2016] FCCA 1550

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1550

Catchwords:
MIGRATION – application for judicial review of refusal to grant Applicant Skilled (Residence) (Class VB) visa – where Applicant failed to meet Australian Employment Experience requirements – where Applicant has reasonable explanation and is a committed and genuine employee in a difficult occupation – found no jurisdictional error as no scope for Tribunal to consider the Applicant’s particular circumstances.

Legislation:

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

Migration Regulations 1994 (Cth), item 6B51 of sch.6B, schs. 6B, 6C, cl.885.221 of sch.2, regs. 2.26A, 2.26AA, 2.26AC, pt.6B.5 of sch.6B

Applicant: PURNEET KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2284 of 2014

Judgment of: Judge Jones

Hearing date: 12 May 2016

Date of Last Submission: 12 May 2016

Delivered at: Melbourne

Delivered on: 24 June 2016

REPRESENTATION

Counsel for the Applicant: Self-represented

Counsel for the Respondents: Mr Horan

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The Second Respondent’s name be amended to the ‘Administrative Appeals Tribunal’.

2. The application for judicial review filed by the Applicant on 13 November 2014 be dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $5,213.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2284 of 2014

PURNEET KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This decision concerns an application for judicial review by the Applicant, of a decision of the then Migration Review Tribunal (“the Tribunal”) dated 24 October 2014, affirming a decision of a delegate of the First Respondent (“the delegate”) not to grant a Skilled (Residence) (Class VB) Skilled-independent (subclass 885) visa (“the visa”) to the Applicant. The Tribunal’s decision turned on the application of what is referred to as the points system, under sub-div.B of Div.3 of Pt.2 (ss.92 to 96) of the Migration Act 1958 (“the Act”).

2. The determinative issue before the Tribunal was whether the Applicant should be given any points in respect of her Australian work experience, in her nominated skilled occupation as a welfare worker with E.W. Tipping Foundation. Before I proceed to consider the judicial review application, I note that the Applicant is a female citizen of India, born on 20 January 1985, and that on 19 December 2011, the Applicant made an application for the visa.

3. I also note that I am satisfied that the Applicant was engaged in her skilled occupation in a bona fide manner, in the sense that she was passionate and committed about the work that she engaged in, when she was with her employer, E.W. Tipping Foundation. The work involved her working with aged clients with special needs, and she struck me as a person who was very passionate about serving the Australian community. I accept that she obtained a Diploma in the relevant area and I also accept that, had the Applicant and the employer understood the particular requirements under the Act, then the Applicant may well not be in the position she is today.

4. However, as I explained to the Applicant, the Court must examine the statutory requirements for the visa she sought, and decide whether the decision of the Tribunal was affected by jurisdictional error.

5. I have to say that, in the end, the Applicant’s plea was for some sort of justice from the Court, and I do sympathise with her plight, because of the fact that she did strike me as genuine and committed. The outcome, which will become apparent soon, is that she missed out on 10 points required, that she may well have obtained, under item 6B51 of sch.6B to the Migration Regulations 1994 (“the Regulations”), because of the particular circumstances that pertained to her employment.

6. It is appropriate, first, in my view, to turn to the criteria that the Applicant was required to meet in order to be granted the visa. As I have indicated, she needed to achieve a qualifying score, when assessed under sch.6B or sch.6C to the Regulations, in order to meet the criterion in cl.885.221 of sch.2 to the Regulations. In particular, she was required to meet the Australian work experience requirements under sch.6B to the Regulations.

7. In what is referred to as the “Australian employment qualifications”, item 6B51 under Pt.6B.5 of sch.6B to the Regulations, 10 points were available, if the Applicant had been employed in Australia, in her nominated skilled occupation or in a closely related occupation for a period totalling at least 12 months, in the 48 months immediately before the day on which the application for the visa was made. If the Applicant had been awarded 10 points under item 6B51 of sch.6B to the Regulations, she would have met the applicable pass mark and would have had a qualifying score under the points system.

8. At the relevant time, that being the date of the visa application, reg.2.26AA(9) of the Regulations provided that “employed” in sch.6B to the Regulations had the meaning given by sub-reg.2.26A(7) of the Regulations, which, in turn, defined “employed” to mean “engaged in an occupation for remuneration for at least 20 hours weekly”. From 1 July 2012, reg.2.26AA(9) of the Regulations relevantly provided that “employed” in sch.6B to the Regulations had the meaning given by sub-reg.2.26AC(6) of the Regulations, which, in turn, defined “employed” to mean “engaged in an occupation for remuneration for at least 20 hours a week”.

9. Before I turn to the Tribunal decision, I will set out the grounds on which the Applicant made her application for judicial review, which she filed on 13 November 2014.  These are:

   “1. My work experience be considered from the date I signed the contract with my employer;

   2. I be granted full points for my work experience;

   3. based on the above, I qualify for PR points;

   4. I am not happy with MRT decision and want to apply to Federal Court to do fair justice.”

10. It is clear from the grounds I have just enumerated, that the complaint of the Applicant is the Tribunal’s assessment of points in relation to her work experience, that is, her Australian work experience with E.W. Tipping Foundation. In effect, what the Applicant is asking the Court to decide, is that the Tribunal erred in not finding that her Australian work experience, within the meaning of the relevant schedules and regulations, applied for the period from 28 October 2010, when she commenced employment with E.W. Tipping Foundation, until 18 December 2011, the day immediately preceding the date of her visa application.

11. She says that the whole of that period should be counted, and consequently, she should be awarded the 10 points and meet the requirements for the visa that she seeks. I should say that under sch.6B to the Regulations, the Applicant was required to reach a pass mark of 120 points. The Tribunal’s consideration of her work experience pursuant to the requirements of the statute, resulted in it determining that she ought to be awarded a total of 110 points under sch.6B to the Regulations.

12. The Applicant attended two hearings before the Tribunal, one on 19 March 2014, and the next on 6 August 2014, following the Applicant submitting additional documents and information relating to her employment in her nominated skill occupation, as a welfare worker with E.W. Tipping Foundation. Nevertheless, the Tribunal, on 24 October 2014, affirmed the delegate’s decision not to grant the Applicant a visa. The Tribunal made various findings of fact, which the Applicant does not dispute. But she argues that the Tribunal ought to have taken into account her explanation for particular periods of her employment with E.W. Tipping Foundation, in which she was not engaged for remuneration for at least 20 hours per week.

13. The Tribunal found as follows. First, that the Applicant commenced employment with E.W. Tipping Foundation on 28 October 2010.  However, the Applicant did not start work immediately, because she was unable to provide a police clearance and to undertake induction training until late November 2010 (CB 138 at [48]).

14. Second, the Tribunal found that, from the beginning of December 2010 to the beginning of January 2011, the Applicant worked approximately 29 hours per week, shadowing a more experienced staff member, for which she was paid at a lower rate (CB 138 at [48]).

15. Third, the Tribunal found that from the beginning of 2011, to the end of March 2011, the Applicant’s shifts were suspended, and during this period the Applicant undertook various training sessions, but was not paid (CB 138 at [48]). The Tribunal then found that from May 2011, the Applicant consistently worked 20 hours or more per week, until the day before the Applicant made her visa application. As I have earlier said, the Applicant does not dispute these findings of fact.

16. She explained to the Court, that the reason that she did not commence to work for remuneration after commencing employment with E.W. Tipping Foundation on 28 October 2010, was that she was required to obtain a police clearance, and this took some time. She also explained that she was shadowing a more experienced staff member, because at the time, the clients she was dealing with were particularly violent, a consequence of the disability that they suffered, and her shifts were suspended in the period from January 2011 to the end of March 2011 to enable her to undergo special training to deal with such clients.

17. She said that the myriad of circumstances that confronted her, because of the special nature of her occupation, in serving the Australian community, ought to have been taken into account by the Tribunal. The Tribunal referred to the fact that the Applicant was regarded as a competent and good employee by her employer, and that representatives from the employer E.W. Tipping Foundation, said to the Tribunal that none of them were aware of the work experience requirements under the visa application, and that if the employer and the Applicant had been aware, she could have applied to be paid for her training period, and she could have been allocated other shifts during that time, at another venue that was less troubled, than the particular venue at which she worked (CB 136, at [25]).

18. The representatives of E.W. Tipping Foundation emphasised that the Applicant was a valued employee, who they wished to retain. I accept that had the Applicant and the employer been aware of the particular requirements of the statute, then steps would have been taken to ensure, that during the relevant period, she continued to be employed in the sense required under the Regulations, namely, for at least 20 hours each week, receiving remuneration. However, the circumstances are that this did not occur, and the Tribunal was required to apply the relevant provisions of the Act and the Regulations, to the circumstances of the Applicant’s case.

19. Based on the evidence before it, the Tribunal found that the Applicant was employed, within the meaning of the Act and the Regulations, for the periods from December 2010 to January 2011, and from May 2011 to 18 December 2011, and that this amounted to 8.5 months of Australian work experience within the meaning of the Act and the Regulations (CB 139, at [52]). As a consequence of this, the Applicant was awarded a total of 110 points under sch.6B to the Regulations, and did not receive the applicable pass mark of 120 points (CB 140-141, at [72] to [73]).

20. The Tribunal went on to assess the Applicant’s points under sch.6C to the Regulations, and found that the Applicant should be awarded 45 points, which was below the applicable pass mark of 65 points (CB144-145, at [108] to [109]). I note here, that this finding of the Tribunal is not the subject of the grounds particularised by the Applicant in her application for judicial review. The consequence of this was that the Tribunal found that the Applicant had failed to achieve the qualifying score when assessed against either sch.6B or sch.6C to the Regulations, and that she did not meet the criterion in cl.885.221 of sch.2 to the Regulations (CB 145, at [111]).

21. I have already set out the circumstances of the Applicant. I sympathise with her complaints about the particular circumstances that she found herself in. I am satisfied that she is very genuine in her commitment to her difficult occupation. I accept that she was a valued employee of E.W. Tipping Foundation, who they wished to retain. I accept that the Applicant was not aware of the rules that applied. I also accept that if the Applicant or the employer were aware, then E.W. Tipping Foundation would have taken steps to ensure that she met the work experience requirement. That is, to be engaged in an occupation for remuneration for at least 20 hours weekly, for a period of at least 12 months, in the 48 months immediately before the day on which the visa application was made.

22. However, the Tribunal had no discretion to take into account the Applicant’s circumstances, and neither does the Court. The Tribunal’s findings were correct, and there is no error in its application of the requirements of the Act and the Regulations to its findings. There is no doubt that the periods during which the Applicant was not engaged for at least 20 hours a week and during which she was not paid, could not be counted as periods in which the Applicant was employed for the purposes of item 6B51 of sch.6B to the Regulations.

23. The Applicant was therefore not entitled to 10 points under Pt.6B.5 of sch.6B to the Regulations, in relation to her Australian employment qualifications. Accordingly, the Tribunal’s decision was correct, and not affected by jurisdictional error.

24. I should note that the First Respondent, the Minister for Immigration and Border Protection, has referred the Court to a matter that arises from the Tribunal decision, and does so as a model litigant. This is as follows - the Tribunal, in its reasons for decision, has at times referred to reg.2.26AC(6) of the Regulations, as containing the applicable definition of “employed” (CB 138 to 139, at [46], [49] [50], [51] and [52]). At other times, the Tribunal referred to the definition in the former reg.2.26A(7) of the Regulations (CB 133-135 at [18], [22] and [25]). However, I am satisfied that there is no material difference in the definition of “employed” between the former reg.2.26A(7) and reg.2.26AC(6) of the Regulations.

25. Consequently, this error in the references made by the Tribunal would not have made any material difference to the outcome or to the outcome of these proceedings. The Tribunal, in my view, proceeded on the correct definition of “employed”, and made its findings in relation to findings of fact, which are not disputed by the Applicant.

26. Accordingly, I have no alternative but to dismiss the Applicant’s application for judicial review, with costs.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date: 24 June 2016