Kumari v Minister for Immigration
[2014] FCCA 2250
•3 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KUMARI & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2250 |
| Catchwords: MIGRATION – Review of decision of Migration Review Tribunal – application for a skilled visa – applicant has failed to satisfy criterion attaching to visa – namely proof of skills recognition – no jurisdiction error established – application dismissed – costs. |
| Legislation: Migration Act 1958 (Cth), ss:65; 360; 362B; 379A(4) & (5); 474; 476(1) Federal Circuit Court Act 1999 (Cth), ss:79(3) |
| Plaintiff 157/2002 (2003) 211 CLR 476 Craig v South Australia (1995) 184 CLR 163 Pantel v Minister for Immigration & Border Protection [2014] FCA 205 |
| Applicant: | AARTI KUMARI & GULBAGH SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | ADG 94 of 2014 |
| Judgment of: | Judge Brown |
| Hearing date: | 29 September 2014 |
| Date of Last Submission: | 29 September 2014 |
| Delivered at: | Adelaide |
| Delivered on: | 3 October 2014 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondents: | Mr d'Assumpcao |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The applicant pay the first respondent’s costs fixed in the sum of three thousand dollars ($3,000.00).
The application filed 26 March 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 94 of 2014
| AARTI KUMARI & GULBAGH SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Aarti Kumari “the primary applicant” and Gulbagh Singh “the secondary applicant” seek to review a decision of the Migration Review Tribunal “the MRT” not to grant them visas pursuant to the provisions of section 65 of the Migration Act 1958 (Cth) “the Act”.
Both applicants are Indian nationals. They are married to each other. On 4 April 2011, the primary applicant applied for a skilled graduate (Class VC) (subclass 485) visa “the primary visa”. At the same time, the secondary applicant applied for a spousal visa, the issue of which depends on whether the primary visa is granted.
In order to satisfy conditions relating to the grant of the primary visa, the applicant in question must nominate a profession or occupation, in which he or she holds relevant skills and provide formal proof of such skills. The manner in which proof of such skills is to be provided is prescribed.
The satisfaction of this criterion is mandatory in nature and contained in regulation 485.211 of the Migration Regulations 1994 “the Regulations”. In essence, an applicant for a skilled visa must be assessed, by a relevant assessing authority, as suitable for the occupation nominated before any relevant visa may be granted.
In her electronic visa application, the primary applicant has nominated cook as her skilled occupation. Further, the application indicates that an authority known as Trades Recognition Australia assessed her skills on 22 March 2011.
In addition, on the visa application, the primary applicant indicated that she had completed a diploma of hospitality management, at a tertiary institution in Brisbane, which she had attended between August 2008 and December 2010.
A delegate of the Minister declined to grant the primary visa in question on the basis that the applicant had failed to satisfy regulation 485, as she had not provided the relevant skills assessment required.
The delegate’s decision, which was made on 27 September 2013, indicates that the primary applicant did not provide the skills assessment, at the time of lodgement of her application, notwithstanding her assertion that it had been done.
Thereafter, on 16 March 2012, and again on 23 August 2013, the applicant was sent letters, on behalf of the delegate, requesting that the skills assessment be provided to the Department. The applicant did not respond to this correspondence. Accordingly, the delegate refused to grant the visa in question.
On 4 October 2013, the applicant sought a review of this decision before the MRT. The applicant prepared her own application to the MRT, which provided a postal address in Murray Bridge, as her address for service.
On 28 January 2014, the applicant was invited to appear before the MRT to give evidence before it pursuant to the provisions of section 360 of the Act. This letter was forwarded to the applicant at her given address but was returned to the MRT endorsed with the following not at this address, please return to sender.
Section 379A(4) of the Act stipulates the means by which documents, including an invitation letter issued pursuant to section 360, are to be conveyed to an applicant. These include pre-paid post to the last residential address or address for service provided to the MRT by any applicant in question.
The application also included an email address, which is also an approved means to convey an invitation to appear before the Tribunal pursuant to the provisions of section 379A(5). On 14 February 2014, an email was sent to the primary applicant, by the Tribunal, informing her that the Tribunal’s letter of invitation had been returned unclaimed. In the email, the applicant was again informed of the date and time of the proposed hearing before the MRT.
The hearing before the MRT
The applicant did not attend the hearing before the MRT, which was scheduled for 26 February 2014. Pursuant to the provisions of section 362B of the Act, the Tribunal may make a decision on the review, without taking any further action, if a person invited to appear before it fails to attend.
Notwithstanding the failure of the applicant to attend, the Tribunal attempted to telephone the applicant, on a mobile telephone number provided by her, in her application. The applicant did not answer her mobile telephone number on three occasions between 1:16pm and 2:32pm on 26 February 2014. Against this background, the Tribunal exercised its discretion to deal with the application for review in the absence of the applicant.
The MRT found as follows:
“Clause 485.221 requires that at the time of decision the applicant’s skills for the nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation (cl.485.332(1)).
As stated above, the relevant assessing authority in this case is Trades Recognition Australia. The applicant was asked to provide the outcome of the skills assessment. She has not provided the outcome of the assessment to the Department or the Tribunal. There is no evidence before the Tribunal that the applicant has a suitable skills assessment for her nominated occupation. The Tribunal finds that the applicant’s skill shave not been assessed as suitable for the nominated skilled occupation by the relevant assessing authority, and that the applicant therefore does not satisfy the requirements of cl. 485.221(1).
As the Primary applicant has not met the relevant criteria, the Tribunal has considered whether the dependent applicants have met any of the relevant criteria. The Tribunal finds that the dependent applicants do not meet any of the relevant criteria for the grant of a visa.
On the basis of the above findings, the Tribunal finds that the applicants do not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.”
It is this decision, which is the subject of review in the present proceedings.
The application to the court
The applicant commenced these proceedings on 26 March 2014. She has prepared her own application. She seeks an order that the decision of the MRT, made on 26 February 2014 be quashed. The sole ground, provided in support of the application, is as follows:
“I lodged Skilled Graduate 485 visa on 04/04/2011 but my application was refused on 27/09/2013. I then applied for review of my decision with MRT on 03/10/2013. My skills assessment for Cook was not submitted with the application. I want to lodge my application for review with Federal Circuit Court so that I can get some more time to provide my positive skills assessment.”
The legal framework
Pursuant to section 476(1) of the Migration Act, the Federal Circuit Court has “the same original jurisdiction in relation to migration decisions as the High Court under section 75(v) of the Constitution”.
However, this jurisdiction is qualified by section 474 of the Act, which stipulates that a wide variety of decisions made under the Act, which are of an administrative nature are “privative clause decisions”.
The decision of the MRT, which the applicant seeks to review in this case, is such a “privative clause decision” as defined by section 474 of the Act.
Pursuant to the section, privative clause decisions are final and conclusive and as such are not open to being challenged, appeal against, reviewed, quashed or called in question in any court and as a consequence, they are not to be subject to any prerogative writ.
However, the High Court has held that the provisions of section 474 do not prevent the review of decisions made by the Tribunal, which are affected by jurisdictional error of have been made in bad faith.[1]
[1] See Plaintiff 157/2002 (2003) 211 CLR 476
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the tribunal’s power.[2]
[2] See Craig v South Australia (1995) 184 CLR 163
Jurisdictional error is a complex concept. It does not entail a merits review or a re-hearing of the facts of the case concerned. In addition to the matters listed above, it can also encompass a breach of procedural fairness or a denial of natural justice, including bias or the appearance of bias.
Conclusions
I can discern no jurisdictional error in the decisions of the MRT in respect of its confirmation of the Delegate’s decision not to grant the applicant the visa in question. The Delegate and thereafter the MRT was required to determine whether the applicant had satisfied the mandatory criterion in question, namely that she had provided the stipulated proof that her skills, in her nominated occupation, were satisfactory.
The applicant did not provide the prescribed form of skills recognition from the nominated authority, Trades Recognition Australia. In those circumstances, both the delegate and the MRT were required to refuse the visa at application.
Given the contents of her application to this court, the applicant concedes that she did not have the required skills assessment, at the time of her various applications, including to this court and the MRT.
The apparent rationale, for her commencement of these proceedings, is to obtain more time in which to obtain the necessary skills assessment. This, of itself, is a tacit recognition, on her part, that there is no error of jurisdiction in the MRT’s decision. Rather, the underpinning of the applicant’s case is that she wants more time so that this court can, in effect, conduct a merits review of the decision, when she hopes the skills assessment will be to hand.
In my view, I have no jurisdiction to extend time in this way. My jurisdiction to quash the MRT’s decision arises only when it is apparent that the reasoning or decision of the MRT is vitiated by jurisdictional error. Neither I nor the MRT have jurisdiction to extend the time for the applicant to provide the mandated level of proof that her skills in the occupation nominated by her are satisfactory
The issue before the MRT was a simple one – had the applicant satisfied the mandatory conditions attaching to the visa in question. In this case, there was one such condition – satisfaction of a skills assessment procedure.
The applicant did not provide such an assessment. On the basis of the evidence available to it, the Tribunal could have reached no conclusion to this question other than the essential condition to the grant of the applicable visa had not been satisfied and therefore the visa could not be granted.
In this regard, what was said by White J in Pantel v Minister for Immigration & Border Protection[3] is apposite.
[3] See Pantel v Minister for Immigration & Border Protection [2014] FCA 205
“[29] The applicant had sought, as I noted earlier, a Skilled (Provisional) (Class VC) visa. The relevant criteria for that class of visa are set out in cl 485 of Sch 2 of the Migration Regulations 1994 (Cth) (the Regulations). Clause 485.22(1) specified at the relevant time that one of the requisite criteria for this class of visa was that “the skills of the applicant for the applicant’s nominated skilled occupation have been assessed by a relevant assessing authority as suitable for that occupation”. The expression “relevant assessing authority” means a person or body specified under reg 2.26B of the regulations: see reg 1.03. In the applicant’s case, this was Trades Recognition Australia (TRA).
[30] The applicant did not have the requisite assessment from TRA.
…
[32] However, that was not something which the MRT could address. The criteria set out in cl 485 of Sch 2 are mandatory. Neither the delegate nor the MRT had a dispensing power with respect to those criteria.”
In this particular case, the applicant did not have the requisite assessment from Trades Recognition Australia. As a consequence, the MRT was required to decline the visa in question. In this context, the applicant has not identified any ground for judicial review. It follows therefore that her application must be dismissed.
The first respondent seeks costs fixed in the sum of $6,646.00, which is the sum provided by Part 3 to Schedule 1 of the Federal Circuit Court Rules 2001 (Cth). This schedule provides costs potentially available to be awarded by the court by reference to a schedule of fixed court events, including the costs to be awarded following a concluded final hearing in a migration matter.
At the hearing before me, the applicant was unrepresented. The issue arising in the case was not a complicated one. As such, the submissions of the first respondent were brief. The hearing itself occupied a very short time indeed. The thrust of the applicant’s submissions was that she wanted more time to provide the relevant skills assessment to the Department.
Clearly, particularly in the context of final hearings arising under the Migration Act, different migration review cases may encompass varying degrees of complexity. Pursuant to section 79(3) of the Federal Circuit Court Act 1999 (Cth) the court is empowered to award costs, at its discretion, in general federal law matters, including migration matters.
Pursuant to section 86 of this Act, the court is also authorised to make rules, in relation to the costs of the proceedings before it. It is as a consequence of this section that the fixed event schedule of costs has come about.
The applicable rules, relating to costs are set out in rule 21 of the Federal Circuit Court Rules. In particular, pursuant to rule 21.02(2), in making an order for costs, the court may do any of the following:
“(2)In making an order for costs in a proceeding, the Court may:
(a) set the amount of the costs; or
(b)set the method by which the costs are to be calculated; or
(c)refer the costs for taxation under Order 62 of the Federal Court Rules or under Chapter 19 of the Family Law Rules; or
(d)set a time for payment of the costs, which may be before the proceeding is concluded.”
However, pursuant to rule 21.10:
“Unless the Court otherwise orders a party entitled to costs in a proceeding (other than a proceeding to which the Bankruptcy Act applies) is entitled to:
(a) costs in accordance with Parts 1 and 2 of Schedule 1 and
(b) disbursements properly incurred.”
Accordingly, it is clear that the court retains a discretion to depart from the fixed event schedule of costs in appropriate cases. In some cases, it is likely to be clearly in the interests of judgement not to award the scheduled level of costs or to put it another way, it would be unjust to award a level of costs out of proportion to the complexity of the case concerned.
As I say, in my assessment, the current matter was not a complicated one. As such, I believe it would be unjust to award the scheduled amount of costs. In these circumstances, I propose to award the first respondent costs in the sum of $3,000.00.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 3 October 2014
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