Khadka v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 452
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Khadka v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 452
File number(s): SYG 1213 of 2018 Judgment of: JUDGE LAING Date of judgment: 9 June 2022 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming decision not to grant the applicants Temporary Business Entry (Class UC) (Subclass 457) visas – whether any contended factual errors by the Tribunal occurred or were material – whether the questions asked by the Tribunal were irrelevant or improper – whether the Tribunal had shown bias – absence of transcript – futility of application where nomination has lapsed – application dismissed. Legislation: Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) items 79, 80, 167, 178
Migration Regulations 1994 (Cth) cls 457.223(4)(a), 457.223(4)(da), 457.223(4)(e) of Schedule 2Cases cited: Begum & Ors v Minister for Home Affairs & Anor [2019] FCCA 1336
Chumber v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 188
Danieal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 43
Karki v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 234
KC & Ors v Minister for Immigration & Anor [2020] FCCA 649
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441Division: Division 2 General Federal Law Number of paragraphs: 46 Date of hearing: 12 May 2022 Place: Sydney Solicitor for the Applicant Ms R. Lahoud (of Counsel) appeared by telephone Solicitor for the First Respondent Mr G. Pasas (Clayton Utz) appeared by videolink ORDERS
SYG 1213 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SANTU RAM KHADKA
First Applicant
ANJU KC
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
9 JUNE 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicants Temporary Business Entry (Class UC) (Subclass 457) visas.
BACKGROUND
The applicants are Nepalese nationals who applied for the visas on 30 June 2016. The first applicant in these proceedings (Applicant) sought to meet the primary criteria for the visa on the basis of a nomination by his then employer, Sydney Education and Training Institute Pty Ltd (SETI) for the occupation of Program or Project Administrator (ANZSCO 511112). The second applicant, his wife, applied as a member of the family unit.
By letters sent by email dated 2 September 2016 and 5 October 2016, the Department of Immigration and Border Protection (Department) (as it was) requested evidence of a positive skills assessment from VETASSESS. This was not provided. Waiver was sought by the Applicant.
On 16 March 2017, the Delegate refused the application for the visas. The Delegate found that the Applicant had not met cl 457.223(4)(e) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), as he had not provided evidence of the skills assessment that had been required by the Department. The Delegate declined to waive the requirement, citing departmental policy.
The applicants applied to the Tribunal for review of the Delegate’s decision on 31 March 2017. Before the Tribunal, the applicants also sought waiver of the skills assessment that had been required by the Department. Additionally (or alternatively), the applicants asked that the Tribunal await a decision from VETASSESS.
The applicants subsequently received a negative outcome from VETASSESS, which was sent to the Tribunal on 29 March 2018. The applicants asked the Tribunal for a further adjournment to await the outcome of an appeal.
The Tribunal declined to further delay its decision pending the outcome of an appeal to VETASSESS. On 3 April 2018, the Tribunal affirmed the Delegate’s decision.
RELEVANT PROVISIONS
Clause 457.223(4) of Schedule 2 to the Regulations relevantly provided:
457.223…
Standard business sponsorship…
(4) The applicant meets the requirements of this subclause if:
(a) each of the following applies:
(i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii) the approval of the nomination has not ceased as provided for in regulation 2.75…
(da) the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and
(e) if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister…
THE TRIBUNAL’S DECISION
The Tribunal observed that an issue before it was whether the Applicant met cl 457.223(4)(e). In addition, the Tribunal had considered whether the Applicant had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation in accordance with cl 457.223(4)(da) (at [8]).
The Tribunal had regard to the ANZSCO code, which was considered to provide a reasonable basis for determining the description of the occupation and tasks involved (at [9]).
The Tribunal set out the relevant parts of the ANZSCO code in relation to the nominated occupation of Program or Project Administrator (ANZSCO 511112). The Tribunal noted that the nominated occupation had an indicative ANZSCO skill level 2, requiring an AQF Associate Degree, Advanced Diploma or Diploma. At least 3 years of relevant experience or training may substitute for the formal qualifications. Tasks of the occupation were stated (at [11]) to include the following:
(a)developing, reviewing and negotiating variations to contracts, programs, projects and services;
(b)responding to inquiries and resolving problems concerning contracts, programs, projects, services provided, and persons affected;
(c)managing paperwork associated with contracts, programs, projects and services provided;
(d)working with Project Managers, Architects, Engineering Professionals, owners and others to ensure that goals are met;
(e)advising senior management on matters requiring attention and implementing their decisions;
(f)overseeing work by contractors and reporting on variations to work orders;
(g)preparing and reviewing submissions and reports concerning the organisation's activities;
(h)collecting and analysing data associated with projects undertaken, and reporting on project outcomes;
(i)reviewing and arranging new office accommodation.
In relation to the Applicant’s request that the Tribunal waive the skills assessment required by the Minister, the Tribunal stated (at [17]-[19]):
17. The applicant has submitted that in this case, the Tribunal should exercise its discretion to waive the skills assessment required by the Minister. The Tribunal notes however, that although it is not bound to follow the decision made for the assessment, it will pay due regard to the request by the Minister and consider on the weight of evidence if such an assessment is necessary in the context, or whether the Tribunal may be able to itself determine the issue on the available evidence.
18. The Tribunal notes that the question of the formal assessment in any event need not be determined as the applicant of his own volition has sought and obtained the requested assessment.
19. That leaves the issue then as to whether the Tribunal finds the applicant has the necessary skills and experience to perform the nominated occupation, irrespective of the VETASSESS outcome.
The Tribunal accepted that the Applicant had a bachelor degree in business from a university in Nepal. It observed that he had given evidence that he worked with Metro Group (Metro) housekeeping, which he said had a contract with Meriton Serviced Apartments (Meriton) for cleaning and servicing holiday apartments. However, the Tribunal observed that the Applicant had not provided any employment agreement which might have demonstrated the tasks he performed as a “supervisor”. The Tribunal did not consider that the Applicant’s oral description gave the Tribunal a “clear picture” of the tasks and duties he performed. For example, the Applicant had stated that he had prepared reports, but gave no examples and did not state who they were to, why or what they covered. Having regard to the Applicant’s difficulties with the English language, the Tribunal did not place much weight upon the stated reporting “as evidence of a high level task”. At most, it was considered to fall within the ANZSCO guide as managing associated paperwork (at [21]-[23]).
The Tribunal considered that the Applicant had not been “able to recount any experiences for Metro which involved the tasks as outlined in ANZSCO”. In particular, the Applicant had not been involved in analysing data, arranging or overseeing new accommodation, working with other project managers or working on resolving any contractual problems between Metro and Meriton. The Applicant had not given clear evidence regarding the meetings he had attended at head office, or how he dealt with “complaint management”. The Tribunal found that not much weight could be placed on this as evidence of a managerial role or involvement in advising senior management. The Tribunal considered that the role in the guide entailed tasks associated with management and was a high level role, where the tasks and reporting would align with administration of specific projects. The Applicant did not identify such projects. His evidence suggested that he was a “supervisor” of employees on an ongoing basis rather than in the role of administering the contract between Metro and Meriton (at [25]-[26]).
The Tribunal found that at Metro, the Applicant’s role substantially involved ensuring that the cleaners and room personnel were present and trained. If he experienced problems, he would report them to management or his immediate supervisor. The Tribunal did not consider that the Applicant was performing the tasks of a Program or Project Administrator outlined in the guide. It did not accept that he obtained the necessary qualifications or experience to equip him for that role (at [27]).
The Tribunal observed that the Applicant had worked for SETI from 2015, after being offered a job as a “program and project administrator”. The Applicant had described his role as working with migration agents as a referral service and to provide information, including the teaching of English courses. He had stated that his role was “to coordinate things”, including liaising with students and reporting to the director. He had described four managers in the business, with about 20 to 25 students at any one time (at [29]).
The Tribunal found that the Applicant had not provided details when asked about the programs he worked to supervise. Whilst the Applicant had stated that he had counted students they needed to advise, coordinated their training activities and created programs, he did not elaborate upon what those tasks involved. The Tribunal was unwilling to place much weight on this as evidence of the role in issue. The Tribunal was not persuaded that the Applicant was performing the tasks as outlined in ANZSCO or that he was engaged by the sponsor in such a role (at [30]).
The Tribunal observed that the Applicant had informed the Tribunal that he had been asked to leave his role around mid-2017 to await the outcome of the review and had not been working since then. The Tribunal noted “that the current nomination by the sponsor has lapsed and there is no evidence from the sponsor that a further application nominating the [A]pplicant [would] be made” (at [31]).
Having considered the evidence before it, the Tribunal found that the Applicant had not worked in the nominated role with relevant experience for a minimum period of three years and did not have on-the-job equivalent training in the role. The Tribunal therefore found that the Applicant did not have the skills, qualifications or experience to perform the role of Program or Project Administrator as outlined in the ANZSCO guide (at [32]).
The Tribunal further stated (at [33]):
33. The Tribunal notes the applicant’s advice on 29 March 2018 and the negative assessment from VETASSESS. In considering whether the Tribunal should wait for the result of the applicant’s appeal, the Tribunal is not required to delay its decision making processes for an indefinite period and in circumstances as here where it appears there may be little prospects of success. The applicant was asked by letter from the Tribunal on 23 February 2018 to provide the response from VETASSESS together with any other information the applicant might wish to provide. No other information has been forthcoming and the Tribunal finds there is no reason for the Tribunal to defer its decision.
The Tribunal concluded that the Applicant was unable to satisfy the requirements of cl 457.223(4)(da) or cl 457.223(4)(e) of Schedule 2 to the Regulations. The Tribunal accordingly affirmed the Delegate’s decision (at [34]-[37]).
PROCEEDINGS BEFORE THIS COURT
An application for judicial review was filed by the applicants on 30 April 2018 containing the following ground:
The Tribunal erred in Law by applying discretionary power inflexibly, affirmed the decision of the department without reviewing the application.
In submissions, the applicants raised a number of additional issues with the Tribunal’s decision. Grouped broadly, these were that the Tribunal:
(a)made mistakes of fact;
(b)asked irrelevant or improper questions; and
(c)“seemed to be unconvinced no matter what the [A]pplicant said” (see [U] of the applicants’ submissions) and had a “predetermined view in line with the Minister (at [Z]) (which I understood gave rise to an allegation of bias).
Contended factual errors
Many of the contended factual errors would properly be characterised as seeking merits review. It is clear that the applicants disagree with the Tribunal’s reasoning in relation to whether the Applicant had provided sufficient evidence regarding his role and what the effect of that evidence was. The applicants contend that the Applicant gave “sufficient evidence of the role of an area supervisor” (at [Q] of the applicants’ submissions). They do not agree that the Tribunal was not provided with a “clear picture” of his role (at [R]). They contend that the Applicant’s evidence was not provided with the weight or meaning that it deserved (at [S], [T], [Y] and [Z]). On their face, these matters raised do not demonstrate jurisdictional error on the part of the Tribunal but rather disagreement with its assessment of the evidence. Merits review is beyond the jurisdiction of this Court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
An exception to the above is the contended error that the Tribunal is said to have made at [20] of its decision. There, the Tribunal characterised Metro as “an international business operating in the wholesale and food service sector”. The evidence before the Tribunal indicated that Metro provided services that would not suitably be described as being in the “wholesale and food service sector”. However, as the Minister submitted, mere factual errors without more are not capable of establishing jurisdictional error. The balance of the Tribunal’s reasoning indicates that it understood the general nature of the work that Metro was claimed to perform. I am not persuaded in these circumstances that the contended factual error was material in the sense considered in cases such as MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441.
The Tribunal’s questions
The matters raised by the applicants do not demonstrate that the questions asked by the Tribunal were irrelevant. It was not irrelevant for the Tribunal to query the location of the Applicant’s work ([V] of the applicants’ submissions). Nor was it irrelevant or irrational for the Tribunal to explore with the Applicant what he did in his role, or why his role was required by his employer ([X], [BB], [CC], [DD] and [EE]).
I also do not accept that the Tribunal putting to the Applicant that his role involved doing what he was told ([U]), or otherwise seeking to clarify the nature of his evidence ([AA(f)]) was improper, or demonstrates relevant error. The Tribunal’s alleged characterisation of a cleaner at the hearing as “someone who comes in casually with their mop and bucket and goes off and does the cleaning” may well be disputed ([W]). However, even if this was said at the hearing, the Tribunal’s decision record does not suggest that this was the role that it attributed to the Applicant in its decision.
The applicants have not demonstrated how the questioning they have objected to resulted in the Tribunal’s decision being affected by jurisdictional error (much less the pleaded error that they rely upon in their application). I am not satisfied that relevant error is able to be established on this basis.
Bias/inflexible failure to review
As noted above, I have taken the applicants’ complaints that the Tribunal had a pre-determined and effectively inalterable view to raise an allegation of bias. It should be uncontroversial that such allegations are serious and must be distinctly made and clearly proven: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [69] per Gleeson CJ and Gummow J.
This has not been done. Even if the Tribunal put to the Applicant that he was “simply someone” who was “doing what [he was] told” in his role, (see [U] of the applicants’ submissions) this does not establish that the Tribunal’s mind was closed to persuasion. Nor might it cause a fair minded lay observer to reasonably apprehend that the Tribunal may not have brought an impartial mind to the review. To the contrary, the Tribunal’s testing of the Applicant’s evidence and giving him the opportunity to comment suggests that the Tribunal’s mind was open to persuasion.
The Tribunal’s assessment of the Applicant’s evidence at [25] as not recounting experiences involving the tasks outlined in ANZSCO did not indicate a “predetermined view”, even if the applicants disagree with it ([Z] of the applicants’ submissions). Disagreement with a finding or assessment is incapable of meeting the high threshold for bias.
None of the matters raised by the applicants persuade me that that the Tribunal inflexibly determined the matter without affording them the requisite review.
To the extent that the applicants contend that the Tribunal was closed to persuasion and/or inflexibly applied Departmental policy regarding waiver of the VETASSESS skills assessment, I agree with the Minister that this contention is answered by the Tribunal’s reasoning at [17]-[19]. There, the Tribunal accepted that it was “not bound” by the assessment and that it may determine whether the Applicant had the requisite skills and experience on the available evidence. The Tribunal stated its intention to proceed to consider the Applicant’s skills and experience “irrespective of the VETASSESS outcome”.
At the hearing before this Court, the applicants’ Counsel submitted that the Tribunal’s actions and words in this regard don’t “match up”, because the Tribunal had awaited the outcome of the VETASSESS assessment. However, this appears to have been at the request of the applicants: [14] of the Tribunal’s decision. In any event, the balance of the Tribunal’s reasoning supports that it did what it said it intended to do and proceeded to assess the Applicant’s skills and experience by reference to the evidence that had more generally been provided by the applicants. This was a different approach to that taken by the Delegate. It does not support the applicants’ contention that the Tribunal inflexibly applied the Department’s approach or policy regarding the VETASSESS assessment. The sole ground relied upon by the applicants is therefore unable to succeed.
The absence of a transcript
A number of the contentions raised depended on what the applicants claimed had occurred at the Tribunal hearing. At the time of the hearing before this Court, no audio or transcript of the Tribunal hearing was in evidence. The applicants sought leave to tender the audio of the Tribunal hearing, or for additional time in which to arrange for a transcript of the hearing to be prepared. This was opposed.
I expressed that I would reserve my decision on the issue. I noted that if I was not persuaded that the applicants should succeed even if I accepted that the exchanges specified in the written submissions had occurred, then I did not consider that leave should be granted for the applicants to rely on the additional evidence at this late stage of the proceedings.
As will be apparent from the above, I am not persuaded on the basis of what has been put forward that the applicants would be able to demonstrate jurisdictional error, even if the words they contend were spoken at the hearing were in fact spoken and in evidence. However, this is difficult to assess without knowing what a more fulsome account of the hearing might reveal. I do not rule out the possibility that a full transcript may have a bearing on the matters relied upon by the applicants.
That said, for the reasons given below, I consider that it would be futile to grant the applicants the relief sought in the present matter. In these circumstances, I am not persuaded that leave ought to be granted for the applicants to rely upon the additional evidence proposed.
Futility
There are now a number of decisions of this Court that deal with the issue of futility within the context of a Subclass 457 visa where the nomination has lapsed, or is otherwise not in place at the time of the hearing before this Court: see for example Chumber v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 188 at [73]-[76]; Karki v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 234 at [16]; Danieal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 43 at [63]-[67]; KC & Ors v Minister for Immigration & Anor [2020] FCCA 649 at [27]-[29]; and Begum & Ors v Minister for Home Affairs & Anor [2019] FCCA 1336 at [32]-[33].
The relevant subclass was removed on 18 March 2018 through the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) (see Schedule 1, Part 1, item 167). Consequential amendments (see items 79, 80 and 178) mean that it is no longer possible for an employer to seek approval of a nomination to sponsor an applicant for a Subclass 457 visa. In result, the Applicant is unable to meet cl 457.223(4)(a) of Schedule 2 to the Regulations (which is set out above) in the absence of a current or pending nomination.
The evidence before the Court is that the Applicant’s nomination had lapsed at the time of the Tribunal’s decision (see [31] of the Tribunal’s decision). By reason of the above legislative amendments, he is unable to obtain a further nomination in support of his visa application. If the matter were remitted to the Tribunal, the Tribunal would have no choice but to affirm the Delegate’s decision as the Applicant would be unable to meet cl 457.223(4)(a).
In post-hearing submissions, the applicants contended that relief would not be futile as the Tribunal could “if it wishes, rehear the matter and reconsider it, differently constituted no doubt”. However, as I have found above, the result of any such rehearing would inevitably be affirmation of the Delegate’s decision.
The applicants also contended that relief would not be futile because the Tribunal could write to the Minister recommending Ministerial intervention. However, as the Minister has submitted, Ministerial intervention is an independent, discretionary power that is personal to the Minister. Whilst the applicants suggested that the proposed correspondence would be “within the Tribunal’s statutory framework to employ”, the statutory foundation of this has not been identified. As the Minister has submitted, it would be open to the applicants to make their own Ministerial intervention request. The potential for Ministerial intervention exists in all cases involving decisions by the Tribunal under Part 5 or Part 7 of the Act. It is not sufficient to defeat a finding of futility.
I accordingly agree with the various decisions of this Court that have held that it would be futile to grant relief in the circumstances faced by the applicants. Even if the applicants were otherwise able to establish jurisdictional error in the decision of the Tribunal, the relief sought would have been refused on this basis.
CONCLUSION
For the above reasons, the application will be dismissed.
I will hear the parties in relation to costs.
I certify that the preceding forty six (46) paragraphs are a true copy of the reasons for judgment of Judge Laing. Associate:
Dated: 9 June 2022
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