Mudiyanselage v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 96
•8 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mudiyanselage v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 96
File number: PEG 115 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 8 February 2024 Catchwords: MIGRATION – Skilled Work Regional (Subclass 491) visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider the applicant’s evidence – whether the Tribunal erred in its assessment of that evidence – whether the conduct of the applicant’s representative amounted to a fraud on the Tribunal – Ministerial Intervention – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), s 5, 92, 93, 94, 95, 96 & 476
Migration Regulations 1994 (Cth), regs 1.15F & 2.26AC, Part 491 and Subdivision 491.2 and cll 491.216, 491.311 in Schedule 2 and Schedule 6D
Cases cited: Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27
Bala v Minister for Immigration and Border Protection [2019] FCA 600
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670
Coertzen & Anor v Minister for Immigration & Anor [2020] FCCA 2410
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Duraisamy v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1201
Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 84 Date of hearing: 30 January 2024 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Ms C Mumford Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 115 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KALHARA JAYASHANKA HERATH MUDIYANSELAGE
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
8 FEBRUARY 2024
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 KENDALL:
BACKGROUND
The applicant is a citizen of Sri Lanka (Court Book (“CB”) 18-20 & 38-40). He arrived in Australia in 2013 as the holder of a student visa (CB 178).
On 21 January 2020, the applicant submitted an expression of interest (“EOI”) to the Department of Home Affairs (the “Department”) (CB 176). In his EOI, the applicant claimed 10 points on the basis that he did not have a spouse or de facto partner (CB 176).
On 27 January 2020, the applicant married Ms Abhilekha Jayamanie Bandara Mayadunna Mayadunne Don (CB 23 & 176).
On 14 April 2020, the applicant was invited by the first respondent (the “Minister”) to apply for a Skilled Work Regional (Provisional) (Class PS) (Subclass 491) visa (the “visa”) (the “invitation letter”) (CB 15-16). That invitation letter stated that the applicant required at least 80 points in order to satisfy the legislative requirements for the grant of the visa (CB 15).
On 4 May 2020, the applicant applied for the visa (CB 17-37). In his visa application, the applicant indicated that his nominated occupation was a “Software Engineer” (CB 17). The applicant nominated a migration agent to assist him with his visa application (the “representative”) (CB 21-22 & 58-60). The applicant also provided a number of supporting documents with his visa application (CB 38-62).
On 21 October 2020, a delegate of the Minister refused to grant the applicant the visa, noting that the applicant’s “invite score, as specified in [his] invitation letter dated 14th April 2020 was 80 and on 21st October 2020 [he was] given an assessed score of 70” (CB 91-103). On that basis, the delegate found that the applicant had “not met a legislative requirement for the grant of [the] visa” (CB 97 & 103). In particular, the delegate recorded that the applicant had not met cll 491.216 and 491.311 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 103).
On 4 November 2020, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 104-105). The applicant nominated his representative (a registered migration agent) to assist him with his Tribunal review (CB 105).
On 3 May 2023, the Tribunal invited the applicant (through his representative) to appear at a hearing before it (by videoconference) to give evidence and present arguments (CB 113-118). The Tribunal’s invitation letter also stated (CB 115-116):
We have considered the material before us but we are unable to make a favourable decision on this information alone.
…
Please provide all documents you intend to rely on to support your case by 22 May 2023. The decision made by the department should set out the reasons for the decision, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a qualified translator.
On 9 May 2023, the applicant’s representative provided a completed “Response to hearing invitation” form and additional documents to the Tribunal in support of his review application (CB 119-155).
On 22 May 2023, the applicant’s representative provided written submissions to the Tribunal (dated 20 May 2023) (CB 156-163). That submission included the following information (CB 160):
I informed him that once he gets married and returns to Australia, I would update his EOI, which had an initial score of 80, and change his marital status from single to married. In doing so, he would forfeit the 10 points he had initially received for being a single applicant, bringing his total down to 70 while still meeting the necessary threshold of 65. I asked him to let me know when he got married and moved back to Australia so that I could change his EOI.
[The applicant] informed and request us to amend the EOI on 17 Feb 2020 by writing an email but unfortunately, we missed out on update this, which prevented us from updating the client's marital status on the EOI. I became aware of this critical error when the Department's delegate refused the visa application on 22 October 2020. This was a big mistake on my side, and I don’t want them to be a victim for my error. He is innocent in this matter, and he has done everything right from his end.
On 29 May 2023, the applicant appeared before the Tribunal to give evidence and present arguments (CB 164-167). His representative assisted him at that hearing (CB 164).
On 30 May 2023, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 171-180).
Later that day (also on 30 May 2023), the Tribunal referred the applicant’s matter to the Department’s Ministerial Intervention Unit (the “MIU”) (CB 182-183).
On 27 June 2023, the applicant sought judicial review of the Tribunal’s decision in this Court (CB 1-8). That application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”).
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision is 10 pages long and spans 61 paragraphs (CB 171-180). The final page includes a list of documents submitted to the Tribunal (CB 172 & 180).
The Tribunal began by explaining that the applicant had been invited to apply for the visa on 14 April 2020 and had submitted his visa application on 4 May 2020. The Tribunal also noted that a delegate of the Minister had refused to grant the applicant the visa (on 21 October 2020) because he did not satisfy the “points test criterion” (as set out in cl 491.216 in Schedule 2 of the Regulations) (at [1]-[2]).
The Tribunal recorded that the applicant’s assessed score was less than the score stated in the invitation to apply for the visa (with the invitation score being 80 points and the assessed score being 70 points). The Tribunal noted that the applicant had sought review by the Tribunal on 4 November 2020 and that he had provided a copy of the delegate’s decision to the Tribunal with that application (at [3]-[5]).
The Tribunal then outlined that it had advised the applicant (on 3 May 2023) that it considered that it was unable to make a favourable decision on the material before it and invited the applicant to attend a hearing before it on 29 May 2023. The Tribunal acknowledged that the applicant’s representative had provided additional documents to the Tribunal on 9 May 2023 (at [6]-[7]).
The Tribunal continued:
8.On 22 May 2023, the applicant’s representative provided legal submissions dated 20 May 2023, stating inter alia that, when the applicant submitted his Expression of Interest (EOI), he claimed 10 points because at the time he was not married. By email on 17 February 2020, the applicant informed his migration agent that he married on 27 January 2020 and instructed the agent to amend his EOI accordingly. The applicant’s agent failed to do so.
The Tribunal confirmed that the applicant had appeared before it at a hearing on 29 May 2023 and that his representative also attended that hearing (at [9]).
The Tribunal then identified that the issue before it was whether the applicant satisfied the “points test criterion” – which required that the applicant’s score be no less than both the “qualifying score” and the score identified in the invitation letter. This meant that the applicant’s score needed to be equal to or more than the applicable pass mark set by the Minister. The Tribunal acknowledged that it was required to consider the applicant against the items prescribed in Schedule 6D of the Regulations and noted that the applicable pass mark to be used was that which was most favourable to the applicant. The Tribunal also acknowledged that some of the elements of the points test related to the applicant’s nominated occupation of “Software Engineer” (at [11]-[13]).
The Tribunal then considered whether the applicant had the qualifying score by assessing the applicant against the factors in Schedule 6D of the Regulations. The Tribunal determined as follows:
(a)Part 6D.1 – Age qualifications: an applicant may be entitled to points if they were aged between 18 and 44 years (at the time of the invitation letter). Because the applicant in this matter was 33 years old at the time of invitation, he was entitled to 30 points (at [14]-[15]);
(b)Part 6D.2 – English language qualifications: an applicant may be entitled to points based on their English language proficiency (at the time of invitation). The Tribunal explained that the applicant made no claims and provided no evidence to suggest that he had a “proficient” or “superior” level of English and no points were awarded to the applicant under this element (at [16]-[17]);
(c)Part 6D.3 – Overseas employment experience qualifications: an applicant may obtain points under this element for employment experience of at least 36 months outside Australia in their nominated skilled occupation (or a closely related skilled occupation) in the 10 years prior to the invitation letter. The applicant made no claims in this regard and no points were awarded under this item (at [18]-[19]);
(d)Part 6D.4 – Australian employment qualifications: an applicant may be given points if they have been employed in Australia in the nominated occupation (or a closely related skilled occupation) for at least 12 months in the 10 years prior to the invitation letter. At the time of the invitation to apply, the applicant made no claims in this regard. With his Tribunal review application, the applicant provided evidence of employment as a “Full-Stack Developer” in Australia from 25 April 2022. As this employment commenced in April 2022 (being after the invitation to apply), no points were awarded (at [20]-[22]);
(e)Part 6D.5 – Aggregating points for employment experience qualifications: an applicant who has relevant qualifications under both Parts 6D.3 and 6D.4 (with combined points of more than 20) must be given points under this Part (and no points are to be awarded under Parts 6D.3 and 6D.4). The applicant here did not receive points under either Part 6D.3 or 6D.4 and was therefore not entitled to points under this item (at [23]-[24]);
(f)Part 6D.6 – Australian professional year qualifications: an applicant may obtain five points under this part if, at the time of invitation, that applicant had completed a specified course of at least 12 months in Australia in the nominated occupation in the preceding 48 months. The Tribunal was satisfied that the applicant had done so and he was thus awarded five points under this element (at [25]-[26]);
(g)Part 6D.7 – Educational qualifications: an applicant may obtain points if, at the time of invitation, that applicant met the requirements for the award of a specified Australian qualification or overseas qualification (of a “recognised standard”). The applicant provided evidence of completion of a Master of Information from Swinburne University of Technology in Victoria from March 2014 to July 2016. The Tribunal was satisfied that the applicant’s study met the necessary requirements and he was awarded 15 points under this item (at [27]-[28]);
(h)Part 6D.7A – Specialist educational qualifications: an applicant may be awarded points if (at the time of invitation) they met the requirements for the award of a master’s degree by research or a specified doctoral degree from an Australian educational institute in a specified field. The applicant made no claims and was awarded no points in this regard (at [29]-[30]);
(i)Part 6D.8 – Australian study qualifications: an applicant may be awarded points if (at the time of invitation), they met the Australian study requirement (as per reg 1.15F of the Regulations). On the evidence before it, the Tribunal was satisfied that the applicant had done so and he was thus awarded five points (at [31]-[32]);
(j)Part 6D.9 – Credentialled community language qualifications: points may be awarded to an applicant if, at the time of invitation, that applicant held a qualification or accreditation in a particular language. At the time of invitation, the applicant had made no claims under this Part. With his review application, the applicant provided a National Accreditation Authority for Translators and Interpreters (“NAATI”) certificate (dated 12 October 2022) confirming he had passed a Credentialed Community Language test. As that qualification was obtained after the invitation to apply, the applicant was awarded no points under this part (at [33]-[35]);
(k)Part 6D.10 – Study in designated regional area qualification: an applicant may obtain points if, at the time of invitation, that applicant met the Australian study requirement and studied and lived in a “designated regional area”. The applicant made no claims and was awarded no points in this regard (at [36]-[37]);
(l)Part 6D.11 – Partner qualifications: an applicant may be entitled to points under this element, depending on their partner’s circumstances. The Tribunal explained that, in his EOI (submitted on 21 January 2020), the applicant claimed 10 points because he “did not have a spouse or de facto partner”. The Tribunal noted that on 17 February 2020, the applicant had told his representative that he was married on 27 January 2020 and asked that representative to amend his EOI accordingly. However, the applicant’s representative failed to do so (at [38]-[39]);
(m)The Tribunal also outlined the applicant’s oral evidence – noting that he had told the Tribunal that his visa application form was had been completed by his representative and, in answer to the question of whether the applicant wanted to “make a change to any of the points shown above”, the applicant had answered “no” (despite the form stating that the applicant claimed 10 points on the basis that he did not have a partner). The Tribunal acknowledged the applicant’s claim that he had included details of his wife in the visa application form and further noted that the applicant was married and had a child (both living in Sri Lanka). The Tribunal found that there was no evidence that the applicant’s wife met any of the requirements set out in Schedule 6D(11) of the Regulations and the applicant was therefore not entitled to any points under this element (at [40]-[43]);
(n)Part 6D.12 – State or Territory nomination qualifications: an applicant may be entitled to points if they were invited to apply for a Subclass 190 visa (in certain circumstances). The applicant was not invited to apply for such a visa and thus was not entitled to any points (at [44]-[45]);
(o)Part 6D.13 – Designated regional area nomination or sponsorship qualifications: an applicant may be entitled to points if they were invited to apply for either a Subclass 489 or Subclass 491 visa. The Tribunal was satisfied, on the evidence before it, that the applicant was invited to apply for a Subclass 491 visa and that the nomination had not been withdrawn. The applicant was therefore awarded 15 points (at [46]-[47]); and
(p)the Tribunal also included a summarised table of the applicant’s points for each of the Parts under Schedule 6D of the Regulations and calculated that the applicant’s assessed score was 70 points. The Tribunal noted that, at the time of both the delegate’s and at the time of the Tribunal’s assessment, the “pass mark” for the visa was 65 points and the applicant had thus “achieved the qualifying score to pass the points test” (at [48]-[50]).
The Tribunal then explained that it was also a requirement that an applicant achieve the score stated in the invitation letter from the Department. The Tribunal noted that the invitation letter sent to the applicant in this matter included a score of 80. The Tribunal found that the applicant had not achieved the score stated in that invitation letter. On that basis, the applicant did not satisfy cl 491.216 in Schedule 2 of the Regulations (at [51]-[52]).
The Tribunal explained that the applicant had asked the Tribunal to refer the matter to the Minister (pursuant to s 351 of the Act) for consideration. The Tribunal outlined the applicant’s circumstances – noting his evidence that, despite instructing his representative to amend his EOI, his representative had failed to do so. The Tribunal also noted that the applicant had obtained an assessed score of 70 points which the Tribunal considered was “high enough such that it would most likely result in an invitation being made [to the applicant] in any case”. Based on the evidence before it, the Tribunal considered that it “would be appropriate for the Minister to consider intervening in this matter on public interest grounds” (at [53]-[60]).
The Tribunal ultimately affirmed the delegate’s decision refusing to grant the applicant the visa (at [61]).
RELEVANT LEGISLATIVE PROVISIONS
Before considering the applicant’s judicial review application, it is useful to first set out some of the legislative provisions applicable in this matter.
This Court has recently outlined the provisions for a similar “skilled” (Subclass 189) visa in its decision in Duraisamy v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1201 (“Duraisamy”). A Subclass 491 visa operates in a similar fashion and the Court’s comments in Duraisamy apply equally in this matter. Those comments (with some amendments) are repeated below.
As outlined above, the applicant in this matter applied for a Subclass 491 visa. The criteria for the grant of a Subclass 491 visa are set out in Part 491 in Schedule 2 of the Regulations.
Subdivision 491.2 in Schedule 2 of the Regulations contains the primary criteria for the grant of a Subclass 491 visa. Relevant to this matter are the following clauses:
491.213
The applicant was invited, in writing, by the Minister to apply for the visa.
…
491.216
(1)The applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act, is not less than the score stated in the invitation to apply for the visa.
(2)The applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act, is not less than the qualifying score for that Subdivision.
Note:Subdivision B of Division 3 of Part 2 of the Act provides for the application of a points system under which applicants for relevant visas are given an assessed score based on a prescribed number of points for particular attributes, assessed against the relevant pool mark and pass mark: see sections 92 to 96 of the Act.
The prescribed points and the manner of their allocation are provided for in Division 2.6 of Part 2, and Schedule 6D, of these Regulations. Pool marks and pass marks are set from time to time by the Minister by instrument: see section 96 of the Act.
…
Sections 92 to 96 of the Act explain the operation of the “points” system in relation to particular classes of visas (usually general skilled migration visas) which require an applicant to achieve a “qualifying” score based on particular attributes and qualifications set out in Schedule 6D of the Regulations (as provided by reg 2.26AC of the Regulations).
The Minister sets the “applicable pool mark” and a “applicable pass mark” in relation to these types of visas by way of a legislative instrument pursuant to s 96 of the Act.
Section 5 of the Act defines the terms “applicable pool mark” and “applicable pass mark” as follows:
applicable pass mark, in relation to a visa of a particular class, means the number of points specified as the pass mark for that class in a notice, under section 96, in force at the time concerned.
applicable pool mark, in relation to a visa of a particular class, means the number of points specified as the pool mark for that class in a notice under section 96 in force at the time concerned.
The Minister is required to assess the applicant against each of the prescribed attributes and issue a points score: s 93 of the Act. That assessment will determine whether an applicant achieves:
(a)the pass mark or higher (resulting in the visa application continuing to be considered for approval);
(b)the pool mark or higher (resulting in the application being placed into the pool for a specified period of time); or
(c)less than the pool mark (resulting in the visa application being refused).
The Minister is not prevented from setting a pool mark and a pass mark that is equal: s 96(5) of the Act.
The relevant legislative instrument in force at the time the applicant applied for the visa was Migration (LIN 19/210: Pool and Pass Marks for General Skilled Migration Visas) Instrument 2019 (“LIN 19/210”) which commenced on 16 November 2019 and was in force at the time of the Tribunal’s decision (and at the time of these reasons).
LIN 19/210 relevantly provides both a pool mark and pass mark of 65 points for a Subclass 491 visa.
APPLICATION TO THIS COURT
The application for judicial review (filed by the applicant on 27 June 2023) contains one particularised ground of review as follows (transcribed verbatim) (CB 5):
1. Member did not consider the relevant information.
Particulars
i. There is no dispute that the invitation score was 80 points.
ii.The 80 points was assessed as the single applicant. In the course of the ROI, the marital status was changed to married and lost 10 points i.e. 70 points.
iii.But 80 points was achieved due to work experience and other points. The Member did not consider extra other points. There is nothing in legislation to preclude those 10 points. The legislation is clear on having similar points as in invitation and not about how the score was achieved.
The applicant also filed an affidavit in support of his application for judicial review. That affidavit repeated the particularised ground of review and annexed a copy of the Tribunal’s decision and related notification documentation.
On 23 August 2023, procedural orders were made by Registrar Downing of this Court giving the applicant an opportunity to file an amended application, any additional evidence and written submissions. No further materials were provided by or on behalf of the applicant.
The materials before this Court include the application for judicial review and supporting affidavit filed by the applicant on 27 June 2023 (the applicant’s affidavit being taken as read and in evidence at the hearing), a Court Book numbering 185 pages (marked as Exhibit 1) and written submissions filed on behalf of the Minister on 22 January 2024.
On 30 January 2024, the applicant appeared at a hearing before this Court. He did so without legal representation. The Court confirmed that he had received copies of the Court Book and the Minister’s written submissions.
Noting that the applicant was unrepresented, the Court gave him an opportunity to explain orally what he thought the Tribunal “did wrong”. This is now the standard practice of this Court following the decision in Bala v Minister for Immigration and Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal had fallen into jurisdictional error. The Court emphasised that the possible categories of jurisdictional error are not exhaustive and sometimes overlap, but for migration decisions of this sort, they most commonly include the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant told the Court that his representative did not “answer his EOI points like he had asked him to” (via email) and that the Tribunal member understood this was “not fair and not done by the applicant but by a third party”. The applicant stressed that his representative had admitted fault (at CB 160) and that all the applicant could do was to try to get additional points elsewhere. The applicant explained to the Court that he had done so by obtaining a NAATI accreditation and additional Australian work experience. The applicant also told the Court that he was simply “trying to get a visa for himself and his family”.
The applicant’s oral submissions (to the extent that they point to any allegation of jurisdictional error) will be considered below.
ADJOURNMENT REQUEST
At the conclusion of the hearing, the applicant told the Court that he was unable to obtain legal assistance and asked for an adjournment to be able to do so.
The Court needs to be satisfied that it is in the interests of the administration of justice for an adjournment to be granted. If the Court is satisfied that an adjournment is necessary to ensure that there is a just resolution of the proceeding, it may exercise its discretion to grant such an adjournment.
When determining whether or not to grant an adjournment, the following factors are ordinarily considered:
(a)the evidence in support of the adjournment request and the explanation for the adjournment;
(b)the parties’ choices in the litigation to date and whether the parties will be able to adequately present their case if an adjournment were not granted such that there is a “just resolution” of the proceeding;
(c)any prejudice to the respondent that cannot be mitigated by costs; and
(d)modern principles of case management (including the avoidance of undue delay) and wastage of public resources.
(See: Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27; Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [44]).
Whilst the Court acknowledged that there would be no prejudice to the Minister that could not be ameliorated by way of a costs order, the Court ultimately determined that it was not in the interests of the administration of justice to grant the applicant an adjournment for the following reasons:
(a)the applicant did not provide any evidence in support of his request (for example, any evidence that he had sought to obtain legal representation or any indication that, should he be provided with additional time, any such assistance would be forthcoming);
(b)the applicant filed his application for judicial review in this Court on 27 June 2023. There is no evidence before this Court to suggest that the applicant has taken any steps to secure legal representation since that date;
(c)the parties were notified of the hearing date in this matter (by email) on 30 August 2023. At no time between August 2023 and the hearing date did the applicant contact the Court or suggest that he needed additional time to prepare for the hearing or to seek legal representation;
(d)at no point during the hearing (at least not until the end of the hearing when the Court indicated that it would adjourn) did the applicant suggest to the Court that he wanted to obtain legal assistance;
(e)the issue in this matter is quite confined and the reasons for the refusal of the visa relate to the applicant’s circumstances at the time of the invitation to apply for the visa (being as at 14 April 2020); and
(f)the Court was satisfied that the applicant was able to properly articulate his concerns in relation to the Tribunal’s decision and his matter.
For the reasons above, the Court did not grant the applicant an adjournment at the conclusion of the hearing (on 30 January 2024).
CONSIDERATION
Ground of review
The applicant’s ground of review provides as follows:
1. Member did not consider the relevant information.
Particulars
i. There is no dispute that the invitation score was 80 points.
ii.The 80 points was assessed as the single applicant. In the course of the ROI, the marital status was changed to married and lost 10 points i.e. 70 points.
iii.But 80 points was achieved due to work experience and other points. The Member did not consider extra other points. There is nothing in legislation to preclude those 10 points. The legislation is clear on having similar points as in invitation and not about how the score was achieved.
To the extent that the applicant suggests that the Tribunal failed to consider the applicant’s “extra points”, this fails on a factual level.
The Tribunal expressly considered the applicant’s claim to be entitled to “extra points” on the basis of his employment and community language qualifications in its written reasons, as follows:
Part 6D.4 – Australian employment qualifications
20.Points may be available under this Part if, at the time of invitation to apply for the visa, the applicant had been employed in Australia in the nominated occupation or a closely related skilled occupation for a period totalling at least 12, 36, 60 or 96 months in the 10 years immediately before that time.
21.At the time of invitation to apply for the visa, the applicant made no claims that he was employed in Australia in the nominated occupation or a closely related skilled occupation for a period totalling at least 12, 36, 60 or 96 months in the 10 years immediately before that time.
22.With the review application, the applicant submitted evidence of employment as a full-stack developer at Australian Technical College in Australia from 25 April 2022. The requirement of Schedule 6D (4) is that the applicant has been employed in Australia at the time of invitation to apply for this visa. As this employment only commenced in April 2022, no points were awarded under this criterion.
…
Part 6D.9 – Credentialled community language qualifications
33.Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant had a qualification in a particular language awarded or accredited by a specified body, and at a specified standard for the language.
34.At the time of invitation to apply for the visa, the applicant made no claims under this part. With the review application, the applicant submitted evidence of passing a Credentialed Community Language test and obtaining a NAATI certificate on 12 October 2022.
35.The requirement of Schedule 6D (9) is that, at the time of invitation to apply for this visa, the applicant had qualification in a particular language awarded or accredited by a body specified by the Minister in an instrument in writing. As this qualification was obtained after the time the applicant was invited to apply for the visa, no points are awarded under this part.
As outlined above, the Tribunal identified that the applicant had provided additional evidence to it (in relation to both his employment and his community language qualification) and considered whether it could award the applicant any additional points on the basis of that evidence.
No error arises in this regard.
To the extent that the applicant suggests that the Tribunal erred in its assessment of that evidence or that the Tribunal ought to have granted him additional points on the basis of the evidence provided to him, the Court disagrees for the reasons that follow.
In order to be granted points in relation to Part 6D.4 in Schedule 6D of the Regulations, the applicant was required to meet the following provisions:
Relevantly, the Court notes that the applicant’s employment experience was required to be assessed “at the time of invitation to apply for the visa”.
Here, the applicant was invited to apply for the visa on 14 April 2020 (CB 15). The evidence provided by the applicant in relation to his “Australian employment” was in the form of a letter from his employer dated 8 May 2023 (CB 123). That letter indicated that the applicant had commenced employment with the organisation on 25 April 2022. Unfortunately for the applicant, because he had not obtained the relevant work experience at the time of the invitation to apply (that is, on 14 April 2020), that work experience could not be considered in the Tribunal’s assessment of the applicant’s points under Part 6D.4 in Schedule 6D of the Regulations.
Similarly, for the applicant to be entitled to points in relation to Part 6D.9 in Schedule 6D of the Regulations, the applicant was required to meet the following provisions:
The Court notes that the applicant’s community language qualification was also required to be assessed “at the time of invitation to apply for the visa”.
As set out above, the applicant was invited to apply for the visa on 14 April 2020 (CB 15). The evidence provided by the applicant in relation to his “community language qualification” was in the form of a letter from NAATI issued on 12 October 2022 (CB 155). That letter indicated that the applicant had “been successful in passing a Credentialed Community Language Test” and that the result was “valid from 12 October 2022 to 11 October 2027”. Again, because the applicant had not obtained the relevant qualification at the time of the invitation to apply (that is, as at 14 April 2020), that language qualification could not be considered in the Tribunal’s assessment of the applicant’s points under Part 6D.9 in Schedule 6D of the Regulations.
No jurisdictional error arises in relation to the applicant’s ground of review.
Oral submissions – conduct of the applicant’s representative
As set out above, the first applicant raised concerns before this Court about the conduct of his “agent” or representative in this matter. In particular, the applicant told the Court that his representative had failed to complete his EOI as instructed and that his representative had admitted to being at fault in this regard.
As explained above, the applicant’s representative provided submissions to the Tribunal (dated 20 May 2023) in which the representative advised as follows:
I informed him that once he gets married and returns to Australia, I would update his EOI, which had an initial score of 80, and change his marital status from single to married. In doing so, he would forfeit the 10 points he had initially received for being a single applicant, bringing his total down to 70 while still meeting the necessary threshold of 65. I asked him to let me know when he got married and moved back to Australia so that I could change his EOI.
[The applicant] informed and request us to amend the EOI on 17 Feb 2020 by writing an email but unfortunately, we missed out on update this, which prevented us from updating the client's marital status on the EOI. I became aware of this critical error when the Department's delegate refused the visa application on 22 October 2020. This was a big mistake on my side, and I don’t want them to be a victim for my error. He is innocent in this matter, and he has done everything right from his end.
The Tribunal acknowledged that information as follows:
56.It is not disputed that the applicant’s EOI was lodged prior to his marriage. Despite instructing his migration agent to amend his EOI accordingly, the representative failed to do so.
As this Court has previously explained in Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670 (citing Coertzen & Anor v Minister for Immigration & Anor [2020] FCCA 2410 at [80]-[81]), when assessing an agent’s conduct or professional obligations to his or her client before the Tribunal, the Court can only assist if there is evidence that the migration agent conducted a “fraud” on the Tribunal: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35.
In effect, in order to constitute a “fraud on the Tribunal”, it must be shown that the fraudulent conduct of the agent (or third party) prevented or disabled the Tribunal from conducting a review in accordance with its obligations under Part 5 of the Act. That is, the fraud must have directly impacted the Tribunal’s decision-making process. Negligence, incompetence or bad advice (while unacceptable) do not amount to jurisdictional error on the part of the Tribunal: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17.
Here, the applicant’s representative erred in failing to amend the applicant’s EOI when instructed to do so. This resulted in the applicant being invited to apply for the visa with a score of 80 points required (CB 15).
Unfortunately for the applicant, because the score in the invitation was listed as 80 points, the applicant was required to meet that score (as required by cl 491.216(1) in Schedule 2 of the Regulations) and the Tribunal was unable to waive that requirement.
The conduct of the applicant’s representative (whilst most certainly reaching the level of negligence or incompetence) does not amount to a fraud on the Tribunal. The Tribunal was required to assess the applicant’s evidence against Schedule 6D of the Regulations and did so. Further, cl 491.216(1) in Schedule 2 of the Regulations required that the applicant meet the score listed in the Minister’s invitation letter. The fact that the applicant’s’ representative failed to update his EOI (resulting in a higher score being included in that invitation letter) did not impact the Tribunal’s decision making process.
To the extent that the applicant has concerns in relation to the failure of his agent to follow his instructions and amend the EOI on his behalf, the Court is unfortunately unable to assist. The Court notes, however, that the applicant may wish to consider raising his concerns with the appropriate regulatory authority (being the Office of the Migration Agents Registration Authority).
No jurisdictional error arises in this regard.
MINISTERIAL INTERVENTION
The circumstances of this case are most unfortunate. The applicant sought the assistance of a registered migration agent to assist him with submission of his EOI and his visa application forms. He provided that representative with instructions to amend his EOI to reflect his change in circumstances (being that he had since married his partner) and his representative failed to do so.
When the matter came before the Court, the applicant stressed to the Court that he had done everything right and that it was through no fault of his own that his visa was not approved. Unfortunately for the applicant, the Court’s jurisdiction is limited and, without evidence of any arguable case of jurisdictional error on the part of the Tribunal, the Court is unable to assist the applicant in relation to his judicial review application.
The Court does, however, consider that the applicant’s circumstances to be compelling. While the Court has no power or ability to compel (or indeed ask) the Minister to exercise one of his discretionary powers, the Court notes that the Minister can do so (as per s 351 of the Act).
The Court notes that the Tribunal in this matter also considered that it would be “appropriate for the Minister to consider intervening in this matter” (at [60] in its written reasons).
Evidence in the Court Book (at 182-183) indicates that the Tribunal referred the matter to the MIU on 30 May 2023. The Court encourages the applicant to follow up on this request and/or to seek Ministerial intervention himself in relation to his matter.
CONCLUSION
The application for judicial review filed by the applicant on 27 June 2023 has failed to identify any jurisdictional error on the part of the Tribunal.
The Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 8 February 2024
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