FEDERAL CIRCUIT COURT OF AUSTRALIA
| KHAN v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2585 |
| Catchwords: MIGRATION – Application made for a subclass 485 skilled visa – Tribunal refused to grant visa because Applicant had not provided evidence of his skills assessment at the time the application was lodged – Applicant unable to obtain skills assessment because of factors outside of his control – Regulations specify that an application must be “accompanied by” a relevant skills assessment – strict requirement required following Anand – Court has no general power to dispense with Regulations – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.351 Migration Regulations 1994 (Cth), regs.485.2, 485.223 |
| Cases cited: Anand v Minister for Immigration & Citizenship (2013) 136 ALD 633; (2013) 215 FCR 562; [2013] 215 FCA 1050 Plaintiff s10/2011 v Minister for Immigration and Citizenship & Anor; Kaur v Minister for Immigration and Citizenship & Anor; Plaintiff s49/2011 v Minister for Immigration and Citizenship & Anor; Plaintiff s51/2011 v Minister for Immigration and Citizenship & Anor (2012) 246 CLR 636 |
| Applicant: | ASFANDYAR KHAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 84 of 2016 |
| Judgment of: | Judge Neville |
| Hearing date: | 29 May 2017 |
| Date of Last Submission: | 31 May 2017 |
| Delivered at: | Canberra |
| Delivered on: | 16 November 2017 |
REPRESENTATION
| Counsel for the Applicant: |
| Solicitors for the Applicant: | Hugh Ford and Associates |
| Counsel for the Respondents: |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application filed 14th November 2016 (and amended on 16th January 2017) be dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $1000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 84 of 2016
| ASFANDYAR KHAN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant, who is a national of Pakistan, is a graduate student in information technology who has been studying at the University of Canberra.
By any and all accounts, the processing of his academic record to satisfy the relevant requirements of the Migration Regulations 1994 was thwarted at various stages through no fault of the Applicant in any relevant respect. However, by the time that such paperwork was properly rectified and supplied in accordance with the Migration Regulations formally he had failed to comply with them. In turn, this led to his unsuccessful attempts before the delegate of the First Respondent Minister, and again before the Administrative Appeals Tribunal, to seek to have relief granted (essentially for an extension of time). It is in relation to these failed attempts that he comes to this Court seeking relief. Alas, even though he is blameless in his actions (acknowledging that he misunderstood one of the questions he was required to answer regarding his academic record requirements and thereby…
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Details
- Case
- [2017] FCCA 2585
- Decision Date
CaseChat Overview and Summary
This case concerned an application for judicial review under section 476 of the *Migration Act 1958* (Cth) of a decision by the Administrative Appeals Tribunal (Tribunal) to affirm a delegate's refusal to grant the applicant a Temporary Graduate (Graduate Work) (Subclass 485) visa. The applicant had applied for the visa on 15 March 2016, and the delegate refused the application on 15 May 2016, finding that the applicant had not met the requirements of clause 485.223 of Schedule 2 to the *Migration Regulations 1994* (Cth). The Tribunal affirmed this decision on 17 October 2016.
The central legal issue before the court was whether the applicant had satisfied clause 485.223 of the *Migration Regulations*, which required that "When the application was made, it was accompanied by evidence that the applicant had applied for an assessment of the applicant's skills for the nominated skilled occupation by a relevant assessing authority." The applicant contended that the Tribunal erred by failing to exercise its discretion to consider a favourable skills assessment obtained after the visa application was lodged, arguing that the Tribunal conducted a *de novo* hearing and should have considered all relevant information. The Minister argued that clause 485.223 imposed a mandatory "time of application" requirement, meaning the evidence of a skills assessment application must have accompanied the visa application when it was lodged.
The court considered the wording of clause 485.223, particularly the phrase "accompanied by evidence," and contrasted it with other provisions that might be satisfied at a later stage. The court noted that the applicant had explicitly stated in his application that he had not applied for a skills assessment and left relevant details blank, despite an explicit warning that failure to provide such evidence could result in the application being unable to satisfy the criteria. The court found that the Tribunal was correct in its interpretation that clause 485.223 was a mandatory "time of application" criterion and that the applicant's subsequent skills assessment, obtained over two months after lodging the visa application, could not satisfy this requirement. The court distinguished the present case from *Berenguel v Minister for Immigration and Citizenship* [2010] HCA 8, noting that the wording of clause 485.223, requiring the application to be "accompanied by evidence," was significantly different from the provision considered in *Berenguel*. The court also relied on *Nguyen v Minister for Immigration and Border Protection* [2016] FCCA 1523, which held that the phrase "accompanied by evidence" mandates a proximate temporal nexus between the provision of evidence and the lodging of the application.
The court concluded that the applicant failed to meet a mandatory criterion at the time of application, and therefore, the Tribunal had no discretion to consider the later-obtained skills assessment. The application was dismissed, with costs awarded to the Minister.
The central legal issue before the court was whether the applicant had satisfied clause 485.223 of the *Migration Regulations*, which required that "When the application was made, it was accompanied by evidence that the applicant had applied for an assessment of the applicant's skills for the nominated skilled occupation by a relevant assessing authority." The applicant contended that the Tribunal erred by failing to exercise its discretion to consider a favourable skills assessment obtained after the visa application was lodged, arguing that the Tribunal conducted a *de novo* hearing and should have considered all relevant information. The Minister argued that clause 485.223 imposed a mandatory "time of application" requirement, meaning the evidence of a skills assessment application must have accompanied the visa application when it was lodged.
The court considered the wording of clause 485.223, particularly the phrase "accompanied by evidence," and contrasted it with other provisions that might be satisfied at a later stage. The court noted that the applicant had explicitly stated in his application that he had not applied for a skills assessment and left relevant details blank, despite an explicit warning that failure to provide such evidence could result in the application being unable to satisfy the criteria. The court found that the Tribunal was correct in its interpretation that clause 485.223 was a mandatory "time of application" criterion and that the applicant's subsequent skills assessment, obtained over two months after lodging the visa application, could not satisfy this requirement. The court distinguished the present case from *Berenguel v Minister for Immigration and Citizenship* [2010] HCA 8, noting that the wording of clause 485.223, requiring the application to be "accompanied by evidence," was significantly different from the provision considered in *Berenguel*. The court also relied on *Nguyen v Minister for Immigration and Border Protection* [2016] FCCA 1523, which held that the phrase "accompanied by evidence" mandates a proximate temporal nexus between the provision of evidence and the lodging of the application.
The court concluded that the applicant failed to meet a mandatory criterion at the time of application, and therefore, the Tribunal had no discretion to consider the later-obtained skills assessment. The application was dismissed, with costs awarded to the Minister.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The First Respondent filed written submissions on 22nd May 2017; those submissions were as follows (footnotes omitted):1) There is before the Court an application under section 476 of the Migration Act 1958 (Cth) (Act) for judicial review of a decision of the second respondent (Tribunal), affirming a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicant a Temporary Graduate (Graduate Work) Class VC (Subclass 485) visa (subclass 485 visa).2) These submissions are filed by the Minister in accordance with the orders made by his Honour Judge Neville on 5 December 2016 and respond to the applicant's amended application for review filed on 16 January 2017, and written outline of submissions fi led on 15 May 201 7.3) The Minister submits that the amended application does not establish jurisdictional error. For the reasons that follow, the application ought to be dismissed with costs.Background4) The applicant applied for the subclass 485 visa on 15 March 2016. The Delegate refused to grant the subclass 485 visa on 15 May 2016 on the basis that the applicant did not meet the requirements of clause 485.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).5) On 17 October 2016, the Tribunal affirmed the Delegate’s decision. 6) The applicant commenced the current proceedings on 14 November 2016. On 16 January 2017, the Applicant filed an amended application for review (Amended Application for Review).Relevant Law7) Clause 485 of Schedule 2 to the Regulations sets out the common criteria for the grant of a subclass 485 visa, followed by criteria set out in two streams: the Graduate Work stream and the Post-Study Work stream.8) Clause 485.2 provides that: “All criteria must be satisfied at the time a decision is made on the application, unless otherwise stated”.9) Clause 485.22 sets out the criteria for a Subclass 485 visa in the Graduate Work Stream.10) Clause 485.223 required the applicant to satisfy the following:485.223“When the application was made, it was accompanied by evidence that the applicant had applied for an assessment of the applicant's skills for the nominated skilled occupation by a relevant assessing authority.” (emphasis added)11) For the purposes of clause 485.223, “relevant assessing authority” means a person or body specified under regulation 2.26B of the Regulations. For the purposes of regulation 2.26B, legislative instrument IMMI 16/060 (relevant to a person who applies for a subclass 485 visa on or after l July 2013) provided that the relevant assessing authority for the applicant’s nominated skills occupation of “JCT Business Analyst ANZSCO 2611124” is the Australian Computer Society (ACS).Tribunal decision12) The issue before the Tribunal was whether the applicant met the requirements of cl 485.223 of Schedule 2 to the Regulations. 13) The Tribunal first observed that the applicant’s nominated skilled occupation was an ICT Business Analyst. It then observed that on his application form for a subclass 485 visa, the applicant responded “no” to the question of whether he had applied for a skills assessment for his nominated skilled occupation. He also did not provide the name of any relevant assessing authority to which he had applied, the date of the skills assessment or provide a reference or receipt number in respect of any skills assessment application, or any other evidence that he had booked to undergo a skills assessment with the relevant assessing authority.14) At the hearing, the applicant acknowledged that he had not applied for a skills assessment at the time of application. The Tribunal set out in its decision record the explanation given by the applicant at the Tribunal hearing, namely, that:“... [the applicant] needed to undertake a Supplementary Assessment in his subject Database Systems to pass the subject and only found out that he had passed the subject on 15 March 2016, the very day that his Student 573 visa ceased. His lecturer emailed him the result. Mr Khan said he felt he had no other option but to apply for his Subclass 485 visa before his Student 573 visa ceased on that day. However, the delay in passing Database Systems meant that the University of Canberra was not able to provide him with the completion letter until 21 April 2016. Mr Khan then applied to the ACS and secured a favourable skill assessment on 27 May 2016.”15) The Tribunal had regard to the applicant’s explanation as to why his application was not accompanied by evidence that he had applied for a skills assessment of his nominated occupation. However, it informed the applicant that the applicable law did not provide any discretion to comply with his request to find that he met clause 485.223 in circumstances where his visa application was not accompanied by evidence of an application for skills assessment.16) The Tribunal affirmed the delegate's decision for the same reasons as the delegate had given for refusing the visa application. The Tribunal decided that, as the applicant's visa application, when made, was not accompanied by evidence of an application for a skills assessment for his nominated skilled occupation by a relevant assessing authority, the applicant did not satisfy the requirements of clause 485.223 of Schedule 2 to the Regulations. As this was the only relevant subclass in the applicant’s case, the Tribunal found that the applicant did not satisfy the prescribed criteria for the grant of a subclass 485 visa and thus the decision under review was affirmed.Amended Application for Review17) The Amended Application for Review, sets out the following grounds:“1) The Tribunal failed to exercise its discretion, when it had the discretion to seek and consider the relevant information, i.e. the skill assessment favourable to the Applicant. (Ground One)2) The Tribunal decision suffers from breach of principles of fairness and substantial justice.(Ground Two)3) The Tribunal erred in not accepting and considering the relevant information, i.e. the favourable skill assessment. (Ground Three)4) The Tribunal’s decision is unreasonable in the sense of not considering the relevant information i.e. the skill assessment favourable to the Applicant, when it was there at the time the Tribunal heard the matter. (Ground Four)5) The Tribunal’s decision suffers from Jurisdictional error as it failed to exercise its discretion to take into consideration the positive skill assessment of the Applicant. (Ground Five)6) The Applicant relies on the High Court case Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 (5 March 2010) and would be making submissions along the lines of this case. (Ground Six)7) The Applicant would be making submissions within the meaning of Section 55 of the Migration Act 1958. (Ground Seven)”18) In essence, all seven grounds allege that the Tribunal erred by failing to exercise its discretion to consider the applicant's favourable skills assessment which the applicant received after the date of lodgement of his visa application. In circumstances where the applicant’s written submissions leave it unclear whether the applicant still wishes to agitate each of his seven grounds of review separately, the Minister addresses the grounds collectively below.Was the applicant denied natural justice by the Tribunal proceeding as it did in respect of the skills assessment?19) Paragraphs 1, 2, 3, 6, 7 and 13 of the applicant’s written outline of submission s raise a complaint that in conducting its review, the Tribunal failed to “exercise its jurisdiction” or failed to accord “substantial justice” as it did not have proper regard to further relevant information, namely evidence of the applicant’s favourable skills assessment which he secured on 27 May 20 16. The applicant also alleges that, in purportedly proceeding to make the decision without considering the skills assessment, the Tribunal’s powers were exercised unreasonably, apparently in the sense found to constitute jurisdictional error by the Full Federal Court in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 (Waensila) and the Federal Circuit Court in Sandhu & Anor v Minister for Immigration and Border Protection [2015] FCCA 71 1 (Sandhu).20) From the outset, the Minister submits that the applicant’s favourable skills assessment, a copy of which was provided to the Tribunal by the applicant at the hearing, was clearly taken into account by the Tribunal at paragraph [11] of its decision record. There is no issue in this matter about whether the Tribunal failed to consider, or obtain, any relevant information. Although the Tribunal acknowledged the applicant’s explanation as to why he could only provide evidence of his skills assessment after his visa application had been made, it found that cl 485.223 was mandatory and required the applicant to have provided evidence that he had applied to have his skills assessed by the relevant assessing authority at the time of the application. There was no such evidence before the Tribunal.21) There can be no dispute that the applicant had not submitted his skills assessment at the time he made his application, nor had he sought one at that time. Thus, if the Tribunal was correct that the relevant criteria must be satisfied at the time of application, then the Tribunal was also correct in finding that the applicant had not met the requirements in cl 485.223. A skills assessment could have only been ‘relevant’ in circumstances where the applicant was able to produce evidence of a skills assessment application that predated his subclass 485 visa application lodged on 16 March 201 6. Nothing before the Tribunal suggested that this was the case and in circumstances where the Tribunal nevertheless considered the applicant's explanation for not providing the skills assessment at the time of application, there can be no basis for saying that the Tribunal was unreasonable or somehow failed “to conduct a review” or failed “to exercise its jurisdiction all together”, as the applicant asserts.22) The Minister also observes that the present case is in marked contrast to the factual circumstances of both Waensila and Sandhu and submits that neither authority is applicable to the facts of this case. In Waensila the issue concerned whether there was a ‘temporal limitation’ on the point in time at which ‘compelling circumstances’, which were relied on for a waiver of various Schedule 3 criteria, must have existed. It is sufficient to note that Waensila concerned a different subclass and criterion: Partner (Temporary) (Class UK) visa and cl 820.211(2)(d), and that unlike cl 820.211(2), the relevant criteria in the present case, cl 423.22 (‘Criteria for Graduate Work stream’), does not contain any ‘waiver’ of criteria provisions on the basis of ‘compelling circumstances’. In Sandhu the issue concerned the Tribunal’s refusal to await a reconsideration by Trades Recognition Australia of a skills assessment initially unfavourable (due to fraud on the part of a third party), but in relation to which there was clear information available that the prospects were reasonable that the decision would be changed on review. In that case, the exercise of the Tribunal’s discretion not to extend time was found to be unreasonable.23) In contrast, in this case there are no ‘compelling circumstance’ exemptions in issue, and no allegation has been made that it was unreasonable for the Tribunal not to extend time so that new material which would have proved different facts could be put before it. Accordingly, the only basis upon which it could be even argued that the Tribunal’s refusal was unreasonable would be that, contrary to the Tribunal’s view that there must be evidence of a skills assessment application at the time of application, a later skills assessment would satisfy the mandatory requirement of cl 485.223. In the Minister’s submission, for the applicant to contend that the refusal to consider the later favourable skills assessment was unreasonable, it would first need to be established that the Tribunal erred in deciding that that requirement needed to be satisfied at the time of application.Is the provision of a skills assessment a “time of application” requirement?24) At paragraphs 8 to 12 of the applicant’s written submissions, the applicant raises several vague and somewhat conflicting challenges to the Tribunal's finding that cl 485 .223 is a ‘time of application’ criteria, and in doing so, seeks to rely on the inquiry undertaken by the High Court in its decision in Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417 (Berenguef) and also seeks to distinguish the present case from the Federal Circuit Court decision in Nguyen v Minister for Immigration and Border Protection [2016] FCCA 1523.25) At paragraph 10 of his written submissions, the applicant contends that in cases involving ‘time of application’ criteria, the High Court decision of Berenguel: “settled the law that there is nothing to prevent relevant information being submitted after the lodgement of the application and having regard to such information.” The Minister submits that this characterisation of that decision is incorrect and does not in any event apply to the present case.26) In Berenguel, the High Court considered cl 885.2 1 3 of Schedule 2 to the Regulations and whether specified English language criteria were a time of application or time of decision criteria. The legislative regime at the time provided, under the heading “855.21 Criteria to be satisfied at time of application” that an applicant must have vocational or competent English. The High Court found that although cl 885.213 was part of a group of clauses under the heading “criteria to be satisfied at time of application”, the heading did not connect grammatically to the terms of the criteria and therefore held that the requirements of cl 885.213 could be satisfied up until the time of the Minister's delegate's decision. This was because the language used in the provision - specifically the phrase “not more than 2 years before the day on which the application was lodged” - was “susceptible of the construction that the test was conducted no earlier than 2 years before the application was lodged” and thus did not require that an IELTS test had to have been conducted before the application was lodged (notwithstanding the heading “criteria to be satisfied at time of application”). 27) Importantly, the High Court contrasted the wording of cl 885.213 to the wording of cl 885.214 and 885.215 which at the time required an application to be “accompanied by evidence” of an Australian Federal Police check. The High Court's determination that cl 885.213 could be satisfied up until the time of the delegate's decision, was contrasted to the requirements of cl 885.214 and 885.215, each of which required that the application be “accompanied by evidence". Similar to cl 885.214 and 885.215, the relevant criteria in this case, being cl 485.223 also contains the phrase “accompanied by evidence". The Minister submits that the applicant has failed to adequately explain the differences in the wording of cl 885.213 and cl 485.223, differences the High Court considered significant.28) Furthermore, since Berenguel the language of the Regulations has been amended and cl 485.212 (which has effectively replaced the former cl 885.213) now uses the phrase that the application must be “accompanied by evidence” to create clarity regarding when documentary evidence must be filed with an application. Subsequent decisions have considered the term “accompanied by evidence” and confirm that the term “accompanied by evidence” is a time of application criteria.29) It follows that Berenguel is distinguished and of no assistance to the applicant in the present case.30) The only case law that the Minister has located which considers cl 485.223 and hence accords precisely with the circumstances of this case is the decision of Judge Burchardt in Nguyen v Minister for Immigration and Border Protection [2016] FCCA 1523 (Nguyen). There, his Honour found that the expression “when the application was made, it was accompanied by evidence” used in cl 485.223 (and also in cl 485.2 12, cl 485.213; 485.214; cl 485.215) “make(s) it imperative that the evidence required 'accompanies' the application itself”.31) In considering the meaning of the word “accompanies”, Judge Burchardt noted that it is not strictly possible to provide accompanying evidence for the purposes of an online visa application because the application and supporting documentation can only be lodged separately. However, his Honour applied the decision of the Federal Court in Anand v Minister for Immigration and Citizenship [2013] FCA 1050 (Anand) in finding that the phrase “accompanied by evidence” requires a proximate temporal nexus between the provision of that evidence and the time at which the application is lodged.32) In Anand, Katzmann J was prepared to countenance that the words “accompanied by” in clause 487.216 may in certain circumstances be satisfied after lodgement of an application where, for example, an annexure was inadvertently not uploaded but was forwarded “a day or so later”. It “might” even extend to circumstances where an applicant “indicated in their application or a document submitted with it” that they would forward a document within one week and did. However, the words were “not so elastic as to stretch” to evidence submitted, as there, 5 months after the application was lodged (and 2 days after the delegate's decision was made). As her Honour commented:“… Language cannot be stretched so far that it snaps... In contrast to the position in Berenguel the construction for which Mr Anand contended would compromise the purpose of the Regulations ... It is true that the tribunal “stands in the shoes” of the minister. But for present purposes that is beside the point. The question is not whether the evidence was provided to the minister; it is whether it accompanied the application. The federal magistrate correctly found that “application” in cl 487.216 meant the application/or the visa.”33) In Anand, it was determined that the “words “accompanied by” are not so elastic as to stretch to evidence submitted, five months after the application was lodged and two days after the decision was made."34) As indicated above, Judge Burchardt applied Anand and held that even a 29 day gap in the submission of relevant 'evidence' was too great. Rather than being “totally different” to the present case, as the applicant asserts in his written submissions, the Minister submits that the Tribunal was correct to apply Nguyen at paragraph [13] of its decision record in finding that the applicant's visa application was not “accompanied by” evidence of a skills assessment, when the application was made.35) In the present case, the favourable skills assessment sought to be relied upon by the applicant was dated over 2 months (some 72 days) after the subclass 485 visa application was made. It therefore could not, by any stretch, be said to have “accompanied” the application “when” it was “made”. Although not stated expressly in its decision record, it was therefore appropriate for the Tribunal to determine that there was not a temporal connection between the provision of the skills assessment and the application.36) Far from the circumstances contemplated in both Nguyen and Anand, the applicant did not inadvertently leave off an attachment, nor foreshadow provision of the document in his application mere days afterwards. Rather, the applicant stated in his application that he had not applied for a skills assessment on page 1 of the application. He left details solicited on page 11 of the application blank. This was despite an “IMPORTANT NOTE” in this section that warned that he “must” provide the evidence “when you lodge this application.” The applicant was also forewarned of the consequences of a failure to do so; namely, his application “being unable to satisfy the criteria/or this visa.”37) The applicant’s failure to provide any evidence of a skills assessment when lodging his subclass 485 visa application constituted a failure to meet a mandatory criterion of the visa. What was imperative was that the evidence that the applicant “had” applied for a skills assessment which “accompanied” the application itself. The absence of such evidence was dispositive of the application. Although the applicant asserts that the Tribunal failed to exercise its discretion and consider the skills assessment material that was later submitted, the Tribunal had no discretion in this regard as cl 485.223 is a time of application criterion. The only decision therefore open to the Tribunal was to refuse the application.38) There was nothing “unfair” or “absurd” about the construction found by the Tribunal - that is, that the requirement in cl 485.223 is a time of application criterion. As the applicant did not at the time of his application satisfy that criterion, his application was bound to fail and the Tribunal’s decision was correct. On that basis, the applicant’s application fails to disclose any legal error on the part of the Tribunal.Orders Sought39) The application should be dismissed with an order that costs be awarded to the Minister in accordance with r 44.15(1) and Division I of Part 3 of Schedule I to the Federal Circuit Court Rules 2001.
Evidence
Evidence Before The Court
Further, the Tribunal found, as did the Delegate, that the Applicant did not relevantly satisfy the criteria for such a visa, as prescribed in Regulation 485.223, which provides as follows (emphasis added):When the application was made, it must be accompanied by evidence that the applicant had applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority. The Applicant filed an Affidavit on 14th November 2016. That Affidavit provided as follows (I do not understand there to be any challenge to the facts set out in the Applicant’s affidavit):1) I am the Applicant in the review application under the MigrationAct 1958.2) On 15 March 2016, I lodged a Visa Application for the grant of a Temporary Graduate (Class VC) (Graduate Work) subclass 485 (Skilled - Graduate) in the nominated skilled occupation of JCT Analyst.3) At the time of lodgement of visa application, I could not apply for the assessment of my skill with the relevant skill assessment authority, the Australian Computer Society (ACS).4) As I had not applied for the skill assessment, in all honesty I ticked the box “No” for the skill assessment answer.5) At the time of lodgement of my visa application, I was on Student 573 Visa.6) I was required to undertake a supplementary assessment in my subject database Systems to pass the subject.7) There was a delay in getting the result of supplementary assessment, which despite my best efforts was out of my control.8) I passed the subject on 15 March 2016.9) Unfortunately, on the day I passed my subject i.e. 15 March 2016, my Student Visa 573 ceased. 10) I was issued with the completion certificate by University of Canberra on 21 April 2016.11) I got my Academic Transcripts on 22 April 2016. However, the transcript did not mention the word “Completed” on it.12) I received the Academic Transcript with words “Completed” on 1 May 2016.13) On 13 May 2016, I applied for the Skill assessment to the ACS. However, when I phoned ACS to check if my application was processed, I was informed that my payment could not be processed.14) On 17 May 2016, I again applied to the ACS for the assessment of my skill.15) On 27 May 2016, I secured a favourable skill assessment.16) On 16 May 2016, the delegate of the Minister for the Immigration & Border Protection advised me that my visa application had been refused. Copy of the decision is attached as Annexure “A”.17) My visa application was refused on the basis that I did not satisfy the requirement of Clause 485. 223 of Schedule 2 of the Migration Regulations 1994.18) On 06 June 2016, I lodged an Application for review before the Administrative Appeals Tribunal (The Tribunal) against the refusal decision.19) On 12 October 2016, I appeared before the Tribunal and gave evidence as to why I had ticked box “No” for the skill assessment answer and also that I had current positive skill assessment for the consideration by the Tribunal.20) The Tribunal refused to consider my current and valid skill assessment.21) On 17 October 2016, the Tribunal affirmed the decision not to grant me the Skilled (provisional) (Class VC) Visa. However, I was notified on 19 October 2016 via Email. Copy of the Tribunal decision dated 17 October 2016 is attached as Annexure “B”.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The Applicant filed the following written submissions on 30th May 2017:Question. Whether the review before the Administrative Appeal Tribunal, under the Migration Act 1958, is de novo hearing?Answer. Yes, the review is by way of rehearing de novoThe Migration Act 1958Sections 55; 348; 349; 351; 353; 357A(3) 359 and 420.Case law1) BBS15 v Minister for Immigration and Border Protection [2017] FCAFC 61 (13 April 2017) at [60].2) Singh v Minister for Immigration & Anor [2016] FCCA 1225 (25 May 2016) at [27].3) AA115 v Minister for Immigration & Anor [2016] FCCA 1776 (15 July 2016) at [41] (36).4) Jiang & Anor v Minister for Immigration & Anor [2016] FCCA 2093 (3 November 2016) at [49].5) SAAZ v Minister for Immigration & Multicultural Affairs [2002] FCA 791 (3 July 2002) at [22] & [24].6) Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274 (21 March 2001) at [68] – [72] The Respondent filed the following written submissions on 31st May 2017 in relation to the issue of the scope or otherwise of a de novo hearing before the Tribunal, thus:1) These submissions in reply are filed by the First Respondent in accordance with the orders made by his Honour Judge Neville on 29 May 2017 and respond to the Applicant's supplementary submissions filed on 30 May 2017.2) It is not contested by the Minister that the Administrative Appeals Tribunal (Tribunal) conducts a 'de novo' hearing, in the sense that, unless the relevant statute provides otherwise, the Tribunal is not restricted, in the conduct of its review of an original decision, to consideration of evidence or facts that existed at the time of the original decision: see, for example, Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31.3) However, the fact that the Tribunal conducts a ‘de novo’ hearing in no way assists the Applicant in the present matter. This is because, for the reasons given at paragraphs [24] to [38] of the First Respondent’s written submissions, cl 428.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) is not a ‘time of decision’ criteria. Rather, it is a ‘time of application’ criteria.4) Clause 485.223 required the Applicant to provide accompanying evidence of a skills assessment “when the application was made”, being 15 March 2016. The Applicant failed to do so. The powers of the Tribunal to conduct a ‘de nova’ hearing, or consider the matter ‘afresh’, have no bearing on whether the Applicant satisfied the mandatory requirements set out in cl 485.223 at the time “when the application was made" .5) Accordingly, the Minister submits that the Applicant’s contention that the Tribunal was required to conduct a ‘de novo’ hearing is not relevant to the present matter and that the application failed to disclose any legal error on the part of the Tribunal. This matter should be determined as follows. First, there is no challenge to the factual matrix set out in the Applicant’s affidavit, filed 14th November 2016. There he set out the range of circumstances that ultimately prevented him, as a matter of fact, providing the relevant documents with his visa Application as required by the Regulations. It is not disputed that the circumstances he outlined were all essentially outside his control; yet it was the serendipitous confluence of these circumstances that ultimately thwarted the success of his Application because he was unable to comply with the Regulations that stipulate that his Application for a visa “be accompanied” by evidence of an application for a skills assessment from his nominated skilled occupation of ICT Analyst by the ACS. As a matter of fact, it was physically impossible for him to satisfy the requirements of cl.485.223 of Schedule 2 of the Regulations.