Lumbini v Minister for Immigration

[2018] FCCA 1142

FEDERAL CIRCUIT COURT OF AUSTRALIA

LUMBINI & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1142

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the findings of the Administrative Appeals Tribunal were open to it – whether the Administrative Appeals Tribunal had any residual discretion in the application of cl.485.215(1) of Schedule 2 to the Migration Regulations 1994 (Cth) – whether the word “accompanied” in the context of cl.485.215(1) of the Migration Regulations 1994 (Cth) confers any temporal latitude – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.357A, 476
Migration Regulations 1994 (Cth), sch.2, cl.485.215

Cases cited:
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CR 152; [2006] HCA 63
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35
Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21
Anand v Minister for Immigration and Citizenship (2013) 215 FCR 562; [2013] FCA 1050
Nguyen v Minister for Immigration and Border Protection (2016) 310 FLR 339; [2016] FCCA 1523
Gulati v Minister for Immigration & Citizenship [2012] FMCA 491

First Applicant: SHREEJALA LUMBINI

Second Applicant: TEK NATH SAPKOTA

Third Applicant: PRAASHNAA SAPKOTA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3338 of 2016

Judgment of: Judge Emmett

Hearing date: 8 May 2018

Date of Last Submission: 8 May 2018

Delivered at: Sydney

Delivered on: 22 May 2018

REPRESENTATION

Solicitors for the Applicant: Mr Kristjan Geering)
(Raddison Lawyers)

Solicitors for the Respondents: Mr Liam Dennis
(Minter Ellison Lawyers)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3338 of 2016

SHREEJALA LUMBINI

First Applicant

TEK NATH SAPKOTA

Second Applicant

PRAASHNAA SAPKOTA
Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 3 November 2016 (“the Tribunal”), dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the Delegate”) made on 27 June 2016 refusing the applicants’ Skilled (Provisional) (Class VC) visas (“Skilled visa”). The Skilled visa application was lodged by the first applicant (“the Applicant”). The second and third applicants are part of the Applicant’s family unit, and their visa applications depend upon the Applicant satisfying the primary criteria for the grant of the Skilled visa.

2. The issue before this Court is whether the Tribunal properly construed the requirement in cl.485.215(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) and made findings that were open to it on the material and evidence before it.

Background and the Tribunal’s review and decision

1. The background of this matter and the Tribunal’s decision are accurately summarised in the First Respondent’s submissions as follows:

   “B FACTUAL BACKGROUND

   3. The applicant is a citizen of Nepal who applied for a Skilled (Provisional) (Class VC) visa on 15 March 2016 (CB 1). The applicant's husband and daughter were included in that application as members of the family unit (CB 43). On 27 June 2016, the delegate refused to grant the visa (CB 63) on the basis that the applicant failed to satisfy clause 485.215 of Schedule 2 to the Regulations.

   4. On 12 July 2016, the applicant sought review of the delegate's decision before the Tribunal (CB 78). The applicant appeared at a hearing before the Tribunal with the assistance of her representative on 25 October 2016 (CB 110). The Tribunal made its decision on 3 November 2016, affirming the decision under review (CB 125).

   C TRIBUNAL DECISION

   5. The Tribunal identified that the relevant subclass was 485 (CB 126: [2]). Among the primary criteria to be satisfied for the grant of the visa was clause 485.215. That clause provided (CB 126: [7]–[8]):

   1) When the application was made, it was accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance.

   2) The applicant has had adequate arrangements in Australia for health insurance since the time the application was made.

   6. The Tribunal accepted that the applicant had provided it with evidence of adequate arrangements in Australia for health insurance since the time the application was made (clause 485.215(2)) (CB 126–127: [9], [12]). However, the Tribunal found that the evidence was not provided at the time the application was made on 15 March 2016 nor in response to the letter from the Department seeking further information from the applicant on 19 May 2017 (CB 127: [12]). Accordingly, the Tribunal concluded that clause 485.215(1) was not satisfied (CB 127: [13]–[14]).

   7. The Tribunal acknowledged the applicant's evidence and accepted her submission that the failure to provide the evidence was a result of her agent's error (CB 126–127: [9], [11]–[12]). However, the Tribunal found that it did not have 'any discretion in this matter' (CB 127: [12]).

   8. For these reasons, the Tribunal found that the applicant failed to satisfy clause 485.215 of Schedule 2 to the Regulations and affirmed the decision under review (CB 126–128: [14]–[17]).”

The proceeding before this Court

1. The applicants were represented by Mr Geering, solicitor. Mr Geering confirmed that the applicants relied on the following grounds:

   “I. The Second Respondent made a jurisdictional error by not taking into consideration relevant evidence of the applicant and/ or refusing to give weight to evidence provided by the applicant and thereby made erroneous findings and mistaken conclusion.

   2. The First Respondent denied a natural justice to the applicant by not giving a proper notice to the Applicant regarding Health Cover.

   3. The First Respondent denied natural justice to the Applicant by failing to notify the applicant the possible outcome of not submitting the requested health cover.

   4. The Second Respondent failed to take into account the intention behind the law relevant law applicable to the Applicant Health Insurance Cover.”

2. At the heart of the applicants’ complaints is a contention that the Tribunal failed to recognise that evidence of the Applicant’s Overseas Student Health Cover (“OSHC”), being held by the Department at the time of the application, was evidence that the Applicant had adequate arrangements in Australia for health insurance in accordance with cl.485.215 of Schedule 2 of the Regulations. Clause 485.215(1) of the Schedule is as follows:

   “485.215

   (1) When the application was made, it was accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance.

   (2) The applicant has had adequate arrangements in Australia for health insurance since the time the application was made.”

   (Emphasis added)

3. Mr Geering, submitted that the ordinary meaning of the word “accompanied” includes “be present” or “occur at the same time”. Mr Geering submitted that because at the time of lodging the application, the Department already held evidence of the Applicant’s health insurance, being the Applicant’s OSHC, it therefore had evidence of health insurance that accompanied the application for the purposes of cl.485.215(1) of Schedule 2 of the Regulations.

4. Ground 1 of the application contends that the Tribunal erred in failing to have regard to that evidence.

5. Clause 485.215(1) of Schedule 2 of the Regulations required that when the visa application was lodged, it was accompanied by evidence that the Applicant had adequate arrangements in Australia for health insurance.

6. It is common ground that upon the filing of the application, the Applicant’s OSHC health insurance, which the Applicant had as a student, ceased.

7. The Tribunal acknowledged that a letter dated 10 March 2016 from Bupa stated that the start date of health insurance cover for all the applicants was 15 March 2016. However, the Bupa letter incorrectly spelled the Applicant’s name and was therefore not sent to the Department in response to a request made on 19 May 2016.

8. The Tribunal accepted that the Applicant had adequate arrangements for health insurance since the time the application was lodged on 15 March 2016. The Tribunal accepted that it was human error which caused the Applicant not to provide evidence of health insurance either with the application at the time of lodgement, or in response to the Department’s request dated 19 May 2016. The Tribunal noted that the agent attended the Tribunal hearing and confirmed the Applicant’s evidence.

9. The Tribunal found that it did not have any discretion in the matter. Certainly, cl.485.215(1) of Schedule 2 of the Regulations requires that when the application was made, it was “accompanied” by evidence that the Applicant had made adequate arrangements in Australia for health insurance.

10. The language of the requirements in cl.485.215 of Schedule 2 to the Regulations does not in terms provide any residual discretion in the matter the Tribunal. In the circumstances, the Tribunal was correct to state that it does not have any discretion in the matter.

11. A fair reading of the Tribunal’s decision record makes clear that the Tribunal was aware of the history of the lodging of the application, the obtaining of health insurance by the Applicant and the human error which it found led to the evidence of health insurance not accompanying the lodging of the visa application or in response to the Department’s request. Those were all findings open to the Tribunal on the evidence and material before it and for the reasons it gave.

12. In the circumstances, the Tribunal’s conclusion that the applicant did not satisfy cl.485.215(1) of Schedule 2 of the Regulations was made without error.

13. To the extent that Grounds 2 and 3 contend that the Applicant was denied natural justice because she was not put on notice of the requirements of cl.485.215(1) of Schedule 2 of the Regulations and the possible outcome of failing to provide the evidence required to satisfy that clause, these grounds are not made out.

14. The Tribunal complied with its procedural fairness obligations under Division 5 of Part 5 of the Act. Section 357A of the Act states that Division 5 is an exhaustive statement of the natural justice hearing rule (see Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [66] per Heerey, Conti and Jacobson JJ).

15. The Applicant was invited to attend a hearing before the Tribunal by letter dated 24 August 2016 and attended a hearing on 25 October 2016 with the assistance of her migration agent. The Tribunal’s reasons make clear that the requirements of cl.485.215(1) of Schedule 2 of the Regulations were discussed at the hearing and the Tribunal also referred to a post hearing submission, which it addressed.

16. The Tribunal noted that the requirements of cl.485.215 of Schedule 2 of the Regulations were brought to the Applicant’s attention in a letter dated 19 May 2016 and that no response was received. In the circumstances, the Applicant was given sufficient opportunity to give evidence and present arguments about the issues arising on review (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CR 152; [2006] HCA 63 (“SZBEL”).

17. As noted above, the Tribunal accepted the Applicant’s submission that the failure to provide the evidence required was as a result of her migration agent’s error. Otherwise, there was no evidence to establish that the Tribunal’s jurisdiction was affected by a third party fraud (see SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35).

18. I accept the submission of the solicitor for the First Respondent that procedural fairness requires the applicant be afforded a fair hearing, not a fair outcome (see Attorney-General (NSW) v Quin (1990) 170 CLR 1; SZBEL at [25]).

19. Ground 4 alleges that the Tribunal failed to take into account the intention behind the law in relation to the provision of health insurance cover by an applicant.

20. There are cases which have considered the possibility of some latitude or elasticity in the temporal connection involved in an application being “accompanied” by a document (see Anand v Minister for Immigration and Citizenship (2013) 215 FCR 562; [2013] FCA 1050 (“Anand”); Nguyen v Minister for Immigration and Border Protection (2016) 310 FLR 339; [2016] FCCA 1523 (“Nguyen”); Gulati v Minister for Immigration & Citizenship [2012] FMCA 491 (“Gulati”). However, those authorities do not suggest that there was any residual discretion in the Tribunal to consider whether or not, when the application was made, it was accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance.

21. I accept the submission of the First Respondent that the text of cl.485.215(1) of Schedule 2 of the Regulations clearly requires that the health insurance evidence be provided when the application is made. That did not occur in this case.

22. As stated above, clause 485.215(1) of Schedule 2 of the Regulations does not provide any discretion to the Tribunal to vary that time. In any event, the four month delay in providing evidence of the health insurance would be unlikely to have satisfied the “temporal connection” and the latitude referred to in Anand, Gulati and Nguyen.

23. The Tribunal’s conclusion that cl.485.215(1) of Schedule 2 of the Regulations was not satisfied was made by the Tribunal after acknowledging and accepting all the Applicant’s submissions in relation to the explanation why the health insurance evidence did not accompany the application. The Tribunal considered and accepted those explanations. However, in the absence of any statutory discretion, the Tribunal was entitled to find that cl.485.215(1) of Schedule 2 of the Regulations was not met by the Applicant.

24. Accordingly, the decision of the Tribunal is not affected by jurisdictional error and there is no jurisdictional error in the conduct of the Tribunal’s review.

25. The proceeding before this Court should be dismissed with costs.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  22 May 2018