KC v MIAC
[2013] FCCA 296
•17 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KC v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 296 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal made a finding of fact which was not open on the evidence and took irrelevant considerations into account. |
| Legislation: Migration Act 1958, ss.105, 474 Migration Regulations 1994, rr.1.15I, 2.26B, cl.485.221 of sch.2 |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Patel v Minister for Immigration & Citizenship (2011) 198 FCR 62 Chen v Minister for Immigration & Citizenship [2011] FMCA 859 |
| Applicant: | AAKASH KC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1590 of 2012 |
| Judgment of: | Judge Cameron |
| Hearing date: | 14 May 2013 |
| Date of Last Submission: | 14 May 2013 |
| Delivered at: | Sydney |
| Delivered on: | 17 May 2013 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1590 of 2012
| AAKASH KC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is a citizen of Nepal, applied for a Skilled (Provisional) (Class VC) subclass 485 visa on 15 November 2010. On 10 January 2012 his application was refused by a delegate of the first respondent (“Minister”) on the basis that he did not satisfy the requirements of cl.485.221 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Relevant legislation
The criteria for the grant of a subclass 485 visa are set out in pt.485 of sch.2 to the Regulations. One of the criteria which the applicant had to satisfy was cl.485.221 which provided:
(1)The skills of the applicant for the applicant’s nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation.
(2)If the assessment mentioned in subclause (1) is made on the basis of a qualification obtained in Australia while the applicant was the holder of a student visa, the qualification was obtained as a result of studying a registered course.
Skilled occupation has the meaning given to it by r.1.15I which relevantly provides:
1.15I Skilled occupation
(1)A skilled occupation, in relation to a person, means an occupation of a kind:
(a)that is specified by the Minister in an instrument in writing to be a skilled occupation; and
(b)if a number of points are specified in the instrument as being available — for which the number of points are available; and
(c)that is applicable to the person in accordance with the specification of the occupation.
…
A relevant assessing authority means a person or body specified under r.2.26B. Regulation 2.26B relevantly provides:
2.26B Relevant assessing authorities
(1)Subject to subregulation (1A), the Minister may, by an instrument in writing for this subregulation, specify a person or body as the relevant assessing authority for:
(a) a skilled occupation; and
(b) one or more countries;
for the purposes of an application for a skills assessment made by a resident of one of those countries.
The relevant instrument which applied to the applicant for the purposes of rr.1.15I and 2.26B was legislative instrument IMMI 12/068 (legislative instrument F2012L01314).
Background facts
Primary application
As noted earlier, the applicant applied for a Skilled (Provisional) (Class VC) subclass 485 visa on 15 November 2010. In his visa application form, which was lodged online, the applicant nominated the occupation of community worker. He stated that on 28 October 2010 he had applied to the Australian Institute of Medical Scientists for a skills assessment and provided a reference number in relation to the skills assessment application. On 16 November 2010 the applicant submitted to the department a form 1023 “Notification of incorrect answer(s)” stating that the reference to the Australian Institute of Medical Scientists in his application should have been to the Australian Institute of Welfare and Community Workers (“AIWCW”). The applicant subsequently provided evidence of a skills assessment issued by the AIWCW for the occupation of welfare worker. The reference number on the assessment matched the reference number the applicant had provided in his visa application form.
On 10 January 2012 the delegate refused to grant the applicant a visa on the basis that he had nominated the occupation of community worker but had provided a skills assessment for the occupation of welfare worker and that, as a result, he did not meet the requirements of cl.485.221 of sch.2 to the Regulations.
The next day, the applicant wrote to the delegate saying:
I did a big mistake while filling the form, the nominated occupation is “Welfare Worker under the ASCO Code” not “Community Worker under the ANZSCO code”. I’m so worried about this, can you please give me any idea on what should I do to make this right. I filled out the form online myself and I did not knew that I did this mistake of putting the wrong nominated occupation. The nominated occupation is always “Welfare Worker”. Can you please guide me what to do next, this was not a deliberate mistake, it was unfortunate.
Review application
In a submission to the Tribunal dated 29 May 2012, the applicant’s migration agent submitted that the applicant had been unable to choose the proper occupation and assessing authority when he made his application online due to problems with the system, which might have occurred due to changes in the law from July 2010. The agent noted that the applicant had provided the proper file reference number when giving the details of his skills assessment in his application. The agent attached a further form 1023 “Notification of incorrect answer(s)” stating that the applicant’s nominated occupation should have been welfare worker and urged the Tribunal to update the applicant’s occupation.
At a Tribunal hearing on 18 June 2012 the applicant claimed that he had completed and lodged his visa application online without any assistance and had made a mistake when filling in the form. He claimed that he should have nominated the occupation of welfare worker. The applicant claimed that his friends who had made the same mistake had been allowed to change their occupations by the department. He stated that he met all the requirements and believed that he was entitled to be granted the visa.
The Tribunal’s decision and reasons
The Tribunal was not satisfied that the applicant’s skills had been assessed by the relevant assessing authority for his nominated occupation. Consequently, the Tribunal was not satisfied that the applicant met the requirements of cl.485.221 of sch.2 to the Regulations. In this connection:
a)the Tribunal noted that the applicant nominated the occupation of community worker in his application, whose relevant assessing authority was specified as the Vocational Education and Training Assessment Services, but had provided assessment advice issued by AIWCW for the occupation of a welfare worker. The Tribunal noted the applicant’s claims that he had been unable to select the right occupation due to problems with the system and his request that it change his occupation. However, the Tribunal found that it was not possible to change a nominated skilled occupation after a valid visa application had been made and during the processing of the visa application because it was an essential requirement of a skilled visa application that an applicant nominate a skilled occupation at the time of making the application. The Tribunal found that having regard to the scheme of skilled visas overall, it was clear that the occupation nominated by a visa applicant at the time of making the visa application was fundamental to the application;
b)the Tribunal noted that it was unclear to it how a system error would have prevented the applicant from nominating a particular occupation or caused him to nominate an occupation different to the one he intended. The Tribunal found that even if the applicant had been unable to nominate his preferred occupation on the online application form, he could have completed and lodged a paper application form on which he would have been able to nominate any occupation and refer to any assessing authority;
c)the Tribunal accepted that the applicant had applied for a skills assessment at the time of his visa application, as evidenced by the assessing authority reference number he identified in his application which appeared on the subsequent skills assessment. However, it found that the issue before it was not whether the applicant had applied for a skills assessment at the time he made his application, but whether his skills had been assessed by the relevant assessing authority for his nominated occupation. The Tribunal concluded that the applicant had applied to the wrong assessing authority and for the wrong occupation;
d)the Tribunal formed the view that the applicant had nominated an occupation and subsequently decided that he should have nominated a different occupation and considered this to be a change of mind rather than a mistake. The Tribunal found that the applicant’s nomination of the occupation of community worker was not incorrect and not subject to correction under s.105 of the Act. It found that as it was not possible to change occupations, the form 1023 submitted to it by the applicant had no effect; and
e)in relation to the applicant’s submission that other people in his circumstances had been allowed to change their nominated occupations, the Tribunal found that it was unable to comment on the circumstances of other people and had to consider only whether the applicant met the requirements for the grant of the visa.
Proceedings in this Court
In the application commencing these proceedings the applicant alleged:
1.The decision of the Second Respondent is affected by jurisdictional error in that the Second Respondent made findings and/or inferences of fact that were irrational, illogical, unreasonable or not based upon evidence.
Particulars
a)The Applicant applied for a Class VC visa on 15 November 2010.
b)At paragraphs 19-20, the Second Respondent found that the Applicant had nominated the occupation of Community Worker, and provided with his visa application the assessment advice issued by the Australian Institute of Welfare and Community Workers Incorporated (“AIWCW”) for the occupation of Welfare Worker.
c)The Applicant provided evidence that he had mistakenly nominated the occupation of Community Worker rather than Welfare Worker, that the Applicant had been unable to choose the proper occupation due to technical problems with the application system.
d)No adverse findings were made by the Second Respondent as to the Applicant’s credibility.
e)At paragraph 24, the Second Respondent found that the Applicant had applied to the “ACWA”; “the wrong assessing authority and for the wrong occupation”, notwithstanding the previous finding (paragraph 20) referred to above.
f)At paragraph 25, the Second Respondent found that the applicant had nominated an occupation and subsequently decided that he should have nominated a different occupation; that it was a change of mind, rather than a mistake, notwithstanding that no evidence was adduced to support such a finding.
g)At paragraph 26, the Second Respondent found that the applicant had intended to nominate the occupation of Community Worker, notwithstanding that no evidence was adduced to support such a finding.
h)On 29 May 2012, the Applicant provided additional relevant information, including a Skills Assessment for the occupation Welfare Worker from the assessing authority, AIWCW, dated 4 December 2010, encompassing the reference number from the Applicants [sic] visa application, displacing any inference arising that the Applicant subsequently decided that he should have nominated a different occupation, that the Applicant had intended to nominate the occupation of Community Worker at the time of making the visa application, or that the nomination by the Applicant in the visa application of the occupation Community Worker was otherwise than a mistake.
2.The decision of the Second Respondent is affected by jurisdictional error in that the Second Respondent asked itself the wrong questions.
Particulars
a)The Second Respondent asked itself whether there is a legislative mechanism to change, rather than correct, the nominated skilled occupation after the visa application is made and during the visa application.
b)The Second Respondent relied upon the decisions of Patel v MIAC [2011] FCA 1220 and Chen v MIAC [2011] FMCA 859 which are distinguishable to the instant case.
3.The decision of the Second Respondent is affected by jurisdictional error in that it failed [sic] consider relevant considerations (information provided by the Applicant) and considered irrelevant considerations.
Particulars
a)On 29 May 2012, the Applicant provided additional relevant information, including a Form 1023 Notification of Incorrect Answer.
b)The Second Respondent failed to consider that additional relevant information when making its decision.
c)The Second Respondent proceeded to consider the Applicant’s visa application on the basis of the skilled occupation was that initially nominated on the visa application form.
d)The Second Respondent failed to consider the Applicant’s visa application on the basis that the skilled occupation was that nominated on the visa application form as corrected by the completed Form 1023 submitted on 29 May 2012.
Consideration
The applicant applied to be granted a visa by reference to one occupation but subsequently sought that visa by reference to a different occupation. In obiter comments in Patel v Minister for Immigration & Citizenship (2011) 198 FCR 62 at 69 [53]-[61], Robertson J expressed the view that an applicant for the class of visa sought by the applicant in this case cannot substitute one nominated occupation for another simply because he or she has a change of mind about that issue. With respect, I agree with and adopt his Honour’s observation and the reasons he gave for it.
The Tribunal in this case expressed the view that it was not possible to change a nominated occupation after a valid visa application had been made and cited in support of that proposition the decision of Lloyd-Jones FM in Chen v Minister for Immigration & Citizenship [2011] FMCA 859 at [58]. However, his Honour appears not to have been taken to s.105 of the Act, which requires visa applicants to correct incorrect answers given in visa application forms and which would appear to be the statutory basis for form 1023, two of which documents the applicant lodged prior to the commencement of these proceedings. In Patel’s case, Robertson J left open the possibility that an erroneous occupation nomination could be corrected pursuant to s.105. To determine this case it is not necessary to express disagreement with the relevant conclusion of Lloyd-Jones FM in Chen’s case but I do observe that it does not appear to sit well with Robertson J’s obiter comments in Patel’s case.
It is not necessary to give detailed consideration to s.105 and its possible operation to permit correction of a mistaken occupation nomination because the Tribunal found as a fact that the applicant did not make a mistaken occupation nomination but, rather, changed his mind about which occupation he wanted to nominate. That finding was open to the Tribunal although, given the nature of the occupational assessment which he had undertaken, the position advocated by the applicant, both at the Tribunal and before this Court, would appear to have been at least as open. As the finding in question was open to the Tribunal and as the Tribunal reached a conclusion on the applicant’s review which was not illogical or unreasonable and which reflected a relevantly correct appreciation of the application and operation of the Act, its decision was not affected by legal error.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated. The application will be dismissed.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Date: 17 May 2013
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