Mughal v Minister for Immigration

[2019] FCCA 3256

FEDERAL CIRCUIT COURT OF AUSTRALIA

MUGHAL v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3256

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Skilled (Class VC) (Subclass 485) visa – whether the Tribunal failed to take into account a relevant consideration – whether the Tribunal misapplied cl 485.223 of the Migration Regulations 1994 (Cth) – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476
Migration Regulations 1994 (Cth), sch.2, cl.485.223

Applicant: MUBASHIR IQBAL MUGHAL

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 32 of 2017

Judgment of: Judge Street

Hearing date: 12 November 2019

Date of Last Submission: 12 November 2019

Delivered at: Perth

Delivered on: 12 November 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr S Cummings
Sparke Helmore

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 12 November 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 32 of 2017

MUBASHIR IQBAL MUGHAL

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 21 December 2016 affirming the decision of a delegate not to grant the applicant a Skilled (Class VC) (Subclass 485) visa (“Skilled visa”).

2. The applicant is a citizen of Pakistan. On 14 March 2016, the applicant applied for a Skilled visa.

3. In the Skilled visa application form, there was the following and relevant entry:

   “You must provide evidence of a suitable skills assessment from the relevant assessing authority, or evidence that you have booked to undergo a skills assessment with the relevant authority when you lodge this application.

   Failure to do so may result in you being unable to satisfy the requirements for lodging an application or being unable to satisfy the criteria for this visa.”

4. Furthermore, in response to a question in the Skilled visa application form which asked “Have you applied to a relevant assessing authority for an assessment of your skills for your nominated skilled occupation?”, the applicant responded “No”.

5. Clause 485.223 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) requires that, at the time of the application being made, it 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.

6. On the 15 June 2016, a delegate found that the applicant failed to meet the criteria for the grant of a Skilled visa. On 1 July 2016, the applicant applied to the Tribunal for review of the delegate’s decision. By letter dated 30 November 2016, the Tribunal invited the applicant to attend a hearing before the Tribunal on 21 December 2016, which the applicant attended.

7. The applicant did not dispute before the Tribunal that he had responded “No” in relation to his making an application for a skills assessment for the nominated position and did not dispute that he had made no such application.

8. The Tribunal referred to the applicant giving evidence that 27 May 2016 was the first time that he sought a relevant skills assessment. The assessment had to be obtained at the time of application.

9. The Tribunal found that the applicant did not seek a relevant skills assessment until more than two months after he applied for a Skilled visa. In these circumstances, the Tribunal found that the requirements of cl 485.223 of the Regulations were not met.

10. Accordingly, the Tribunal affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 16 January 2017. On 12 April 2017, a Registrar of the Court made orders fixing the matter for hearing and providing the applicant an opportunity to put on an amended application, affidavit evidence and submissions. No such documents have been filed.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant submitted that the Skilled visa application form should not have permitted him to complete it where he answered “No” to an essential requirement. There is some force in the applicant’s criticism in that regard, however, it does not identify any relevant error by the Tribunal. Further, it is apparent that the Skilled visa application form put the applicant on notice as to the potential consequences of not having applied for a skills assessment.

4. The applicant’s submissions from the bar table also identified the steps and hardship he and his family had undergone in relation to the Skilled visa. This Court has no power to determine the matter on compassionate or discretionary grounds. The applicant’s submissions from the bar table, in substance, invited merits review. This Court does not have power to review the merits.

5. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   1. The decision of the tribunal dated 21/12/2016 is affected by jurisdictional error because the tribunal failed to take into account a relevant consideration.

   2. The tribunal failed to determine that the appellant does not meet the requirements of cl.485.224.

Ground 1

1. In relation to ground 1, the assertion of jurisdictional error without further and proper particulars is incapable of identifying any relevant error.

2. On the face of the material before the Court, the Tribunal complied with its statutory obligations and the applicant had a real and meaningful hearing. There is no relevant consideration identified which the Tribunal failed to take into account. The Tribunal did not have power to determine the matter on compassionate or discretionary grounds and the Tribunal was bound by the mandatory criteria which the applicant had to meet.

3. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, this reflects disagreement with the mandatory criterion which does not identify any jurisdictional error.

2. The Tribunal correctly identified the want of the mandatory criteria being a skills assessment prior to the making of the application. The Tribunal was correct to hold that the requirements of cl.485.223 of the Regulations were accordingly not met.

3. No jurisdictional error is made out by ground 2.

4. As the application fails to identify any jurisdictional error, the application is dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 12 November 2019 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  24 January 2020