Myo Swe v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 375
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Myo Swe v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 375
File number: MLG 2490 of 2016 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 11 May 2023 Catchwords: MIGRATION – Application for judicial review - Skilled (Residence) (Class VB) visa – review of the Administrative Appeals Tribunal decision – whether Tribunal failed to comply with s 360(1) – Whether sufficient time at hearing to answer questions – Information relevant to the review – whether hearing should have been adjourned to allow applicant time to obtain new skills assessment – no jurisdictional error – application dismissed – costs ordered Legislation: Migration Act 1958 (Cth) ss 360, 425 and 476
Federal CircuitCourt Rules 2001 (Cth) sch 1, pt 3, div 1, item 3
Migration Regulations 1994 (Cth) cls 886.223, 886.224 and 4020
Cases cited: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Division: Division 2 General Federal Law Number of paragraphs: 71 Date of last submissions: 27 January 2021 Date of hearing: 27 January 2021 Place: Melbourne (by videoconference) Counsel for the Applicant: Ms R Germov Solicitor for the Applicant: MP Migration Law Counsel for the First Respondent: Mr J Lipinski Solicitor for the First Respondent: Clayton Utz The Second Respondent submitting an appearance save as to costs ORDERS
MLG 2490 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KHINE YAR ZAR MYO SWE
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
11 May 2023
THE COURT ORDERS THAT:
1.The Amended Application filed 3 July 2017 is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.
3.The name of the First Respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
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
HER HONOUR JUDGE C.E KIRTON KC:
INTRODUCTION
By an Amended Application filed on 3 July 2017 (Amended Application), the Applicant seeks judicial review of the Administrative Appeals Tribunal (Tribunal) decision dated 26 October 2016 (Tribunal’s Decision).
The Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Skilled (Residence) (Class VB) (Subclass 886) visa (Visa).
The Amended Application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (MigrationAct). The Applicant has two (2) grounds of review in the Amended Application, which the Court will consider in detail below.
This matter was heard on 27 January 2021 and proceeded by way of videoconference on Microsoft Teams, as a result of the health protocols adopted by the Federal Circuit Court of Australia (as the Court then was) at the time due to the ongoing COVID-19 pandemic (Final Hearing).
BACKGROUND
The Court has before it a Court Book filed by the Minister on 31 May 2017 numbering 266 paginated pages (Court Book). The Court has reviewed the material in the Court Book in detail. The Court notes that the Minister’s Outline of Submissions, filed on 1 August 2017 (Minister’s Submissions), at [7] to [18], accurately summarise the factual history of this matter. The Court adopts these submissions as its own. They provide, with some amendments, as follows.
The Applicant, a citizen of Myanmar, arrived in Australia in or around July 2007 as the holder of a student visa. He applied for the Visa which is the subject of the present Amended Application on 18 March 2009 (Visa Application), with the assistance of a migration agent (Applicant’s Representative).
In the Visa Application, the Applicant nominated his occupation as a 'Graphic Pre-Press Tradesperson'.[1] He provided a skills assessment from Trades Recognition Australia (TRA) dated 29 September 2008, which purported to endorse the Applicant as having the necessary work experience, qualification and skills to meet the requirements of this occupation (Skills Assessment).[2]
[1] Court Book (CB) 9.
[2] CB 21-22.
On 9 July 2010, the Skills Assessment was revoked by TRA (TRA Revocation).[3]
[3] CB 73–74.
On 10 August 2010, an officer of the Department of Immigration and Citizenship (Department) sent a letter by email to the Applicant's Representative (10 August 2010 Letter) to raise the issue for the Applicant's comment that he did not appear to satisfy cl 886.223 of the Migration Regulations 1994 (Cth) (Regulations) because TRA had revoked the Skills Assessment.[4] The 10 August 2010 Letter stated, inter alia:
[…]
An applicant for a Class VB, subclass 886 visa who is seeking to satisfy the primary criteria for the visa must be assessed against a number of criteria at the time the application is decided. These criteria include, amongst other things that the applicant satisfied clauses 886.223 and 886.224 of the regulations.
[…]
Given that TRA have advised that the [Applicant]’s "Migration Skills Assessment Application Result" has been revoked I am writing to advise that I am not satisfied that they meet the requirements of clauses 886.223 and 886.224 of the Migration Regulations. [5]
[4] CB 48–52.
[5] CB 48–49.
On 6 September 2010, the Applicant's Representative responded by email to the 10 August 2010 Letter, and attached a statutory declaration sworn by the Applicant on 5 September 2010.[6] In that statutory declaration, the Applicant did not deny that the Skills Assessment had been revoked, and did not indicate that he had applied for a further assessment from TRA.
[6] CB 53–55, 57–58.
On 8 February 2013, an officer of the Department again sent a letter by email to the Applicant's Representative (8 February 2013 Letter) to raise the issue for the Applicant's comment that the Skills Assessment had been revoked on the basis that the Applicant had submitted 'a bogus document or false or misleading information in relation to [the] Visa Application’.[7] The Department cited Public Interest Criterion (PIC) 4020 contained in clause 4020 of Schedule 4 to the Regulations, and noted that PIC 4020(1) requires that there be no evidence before the Minister that an applicant has given, or caused to be given, to the Minister a bogus document or false or misleading information in relation to a visa application.[8]
[7] CB 64-69.
[8] CB 65.
On 14 December 2015, an officer of the Department again sent a letter by email to the Applicant's Representative (14 December 2015 Letter) to raise the issue for the Applicant's comment, that the Skills Assessment had been revoked on the basis that the Applicant had submitted 'a bogus document or information that [was] false or misleading in a material particular'.[9]
[9] CB 78-81.
Despite being invited to comment on the issue of the revocation of the Skills Assessment by TRA, the Applicant failed to make use of this opportunity and did not provide any response to the 8 February 2013 Letter and 14 December 2015 Letter.[10]
[10] CB 90.
On 13 January 2016, the Delegate refused to grant the Visa (Delegate’s Decision).[11] The Delegate observed:
[…]
Clause 886.223 is a criterion to be satisfied at the time of the decision. Clause 886.223 provides:
[The Delegate then sets out the content of cl 886.223]
Whilst your application included evidence that a relevant assessing authority Trades Recognition Australia (TRA) had assessed your skills in relation to your nominated skilled occupation on 29/09/2008 (TRA reference TRA08/106215873) this assessment was subsequently revoked on 09 July 2010.
[…]
In the absence of your response and a suitable skill assessment, l have determined that you are therefore unable to satisfy the mandatory requirements of clause 886.223 for the grant of a 886 subclass visa.[12]
[11] CB 85–87, 89–92.
[12] CB 90–91.
On 29 January 2016, the Applicant applied to the Tribunal for merits review of the Delegate's Decision, attaching a copy of that decision to his application form.[13]
[13] CB 94–111.
By email dated 27 September 2016, the Tribunal sent a letter inviting the Applicant to attend a hearing on 26 October 2016 (Tribunal Hearing),[14] which the Applicant attended.[15]
[14] CB 135–137.
[15] CB 229.
Prior to the hearing, the Applicant submitted material including written submissions on 25 October 2016.[16] In those submissions the Applicant stated, among other things, that he had ‘reapplied TRA Migration Skills Assessment Application again at 20/10/2016...’ and the Applicant attached evidence of his payment to TRA.[17]
[16] CB171–172.
[17] CB 172–173.
On 26 October 2016, the Tribunal gave an oral decision and reasons at the conclusion of the hearing, affirming the Delegate’s Decision.[18]
[18] CB 234–239.
On 27 October 2016, the Tribunal published a written record of its decision and reasons.[19]
[19] CB 242–246.
TRIBUNAL’S DECISION
The Tribunal’s Decision appears at pages 242 to 246 of the Court Book. The Minister’s Submission’s, at [19], accurately summarise the Tribunal’s Decision. The Court adopts the summary provided in those submissions, with amendments, as its own.
On 26 October 2016, the Tribunal affirmed the Delegate’s Decision not to grant the Applicant the Visa on the basis that he did not satisfy cl 886.223 of the Regulations.[20] In coming to this decision, the Tribunal:
[20] CB 243–246.
(a)Observed that the Delegate refused to grant the Visa because the Applicant did not satisfy cl 886.223(1) of the Regulations on the basis that he failed to provide evidence of a skills assessment for the nominated occupation.[21] The Tribunal also noted that the Applicant submitted a copy of the Delegate's Decision with his application for merits review to the Tribunal;[22]
[21] CB 243, [3].
[22] CB 243, [4].
(b)Observed that the Department wrote to the Applicant on 10 August 2010, 8 February 2013 and 14 December 2015 inviting the Applicant to comment on the fact the Skills Assessment had been revoked;[23]
[23] CB 244, [12].
(c)Found that the Applicant provided contradictory evidence by initially stating that he was not aware that the Skills Assessment had been revoked until he received the Delegate's Decision, yet he subsequently confirmed that he had responded to the 10 August 2010 Letter in which this issue was raised.[24] The Tribunal found that the Applicant had been aware of the revocation of the Skills Assessment from as early as September 2010;[25]
[24] CB 244–245, [13]–[14].
[25] CB 245, [23].
(d)Noted that the Applicant had reapplied, six (6) days prior to the Tribunal Hearing, for a skills assessment from TRA.[26] The Tribunal also recorded the Applicant's evidence that he had been advised by his Representative to reapply for an assessment;[27]
[26] CB 245, [16].
[27] CB 245, [17].
(e)Noted the Applicant's admission that he did not have a positive skills assessment as at the day of the Tribunal Hearing;[28]
(f)Although the Applicant did not formally seek an adjournment, the Tribunal considered whether to grant an adjournment to allow the Applicant further time to obtain a new skills assessment.[29] However, the Tribunal decided not to adjourn the matter because:
(i)The Applicant had been aware of the revocation of the Skills Assessment since September 2010;[30]
(ii)The Applicant had more than six (6) years to apply for the skills assessment, but only did so six (6) days prior to the Tribunal Hearing;[31]
(iii)The Applicant had therefore already had sufficient time to apply for a new assessment;[32]
(iv)It was uncertain if and when the Applicant would obtain a positive skills assessment;[33] and
(v)If the Applicant obtained a positive skills assessment, he would be able to apply for another type of visa offshore.[34]
(g)Found that, because the Applicant did not have a positive skills assessment, he did not meet the requirements of cl 886.223 of the Regulations.[35] The Tribunal therefore affirmed the Delegate’s Decision not to grant the Applicant the Visa.[36]
[28] CB 245, [18].
[29] CB 245, [19].
[30] CB 245, [23].
[31] CB 245, [23].
[32] CB 245, [24].
[33] CB 246, [25].
[34] CB 246, [27].
[35] CB 246, [30]-[33].
[36] CB 246, [34].
PROCEEDINGS BEFORE THE COURT
On 16 November 2016, the Applicant filed the Application seeking judicial review (Application).[37] At the time the Application was filed, the Applicant did not have legal representation. The Applicant became legally represented on 5 June 2017.[38]
[37] CB 247.
[38] Applicant’s Notice of Address for Service dated 2 June 2017 and filed 5 June 2017.
The Applicant was provided an opportunity to file an amended application by Orders of Judge Riley of this Court dated 7 June 2017. The Applicant lodged the Amended Application on 30 June 2017 and it was accepted for filing and sealed by this Court on 3 July 2017. The Amended Application contained two (2) grounds of review as follows:
1.The Tribunal did not comply with Section 360(1) of the Migration Act 1958 (Cth) (as amended – the “MA”).
Particulars
(a)The Tribunal denied the Applicant procedural fairness by not putting to him that the only visa criterion under consideration was whether the Applicant had a valid skills assessment as required by clause 886.223(1) of part 866 of Schedule 2 to the Migration Regulations 1994 and that his ability to satisfy Public Interest Criterion 4020 was not in issue.
(b)The Tribunal did not allow the applicant sufficient opportunity to explain why he did not obtain a new skills assessment since his initial favourable assessment was revoked by Trades Recognition Australia in 2010.
(i) The duration of the hearing was 24 minutes.
(ii) The hearing recording demonstrates that the presiding Member cut the Applicant off in his responses to the Tribunal’s questions.
(c)The Tribunal did not put to the Applicant its view that he could apply for another type of visa offshore if and when he obtained a favourable skills assessment.
(d)The Tribunal conducted the hearing in a manner that would cause a reasonably well informed observer to conclude that the Tribunal had reached a decision that was not amenable to change regardless of the applicant’s evidence.
2.The Tribunal failed to determine the review application according to law.
Particulars
The Tribunal acted unreasonably in making an oral decision adverse to the Applicant in light of the Applicant’s evidence that he had applied for a new skills assessment and was awaiting the outcome. In proceeding to make an immediate adverse decision, the Tribunal took into account an irrelevant consideration; namely that the Applicant may be able to apply for another visa offshore.
(Without alteration)
The materials before the Court include the Court Book (marked as Exhibit 1), the Amended Application, the Applicant’s Contentions of Fact and Law, dated 30 June 2017 and filed 3 July 2017 (Applicant’s Submissions), Affidavit of Maria Psihogios, sworn and filed 6 July 2017 (First Psihogios Affidavit), Affidavit of Maria Psihogios, sworn 26 January 2021 and filed 27 January 2021 (Second Psihogios Affidavit) and the Minister’s Submissions.[39]
[39] The Applicant confirmed documents relied upon at Transcript P11:L11-L33.
The Second Psihogios Affidavit was filed in accordance with the Joint Practice Direction 2: JPD 2 of 2020 – Special Measures in Response to COVID-19 Electronic Filing, Viewing of Subpoenas, Annexures to Affidavits, Signatures on Documents to Affidavits, and Fees. Ms Psihogios, solicitor for the Applicant, deposed to the contents of the Second Psihogios Affidavit during the Final Hearing.[40]
[40] Transcript P10:L20-47.
During the Final Hearing, Counsel for the Applicant made submissions as to the necessity of providing the Court with the audio recording of the Tribunal Hearing, as it relates to Ground 1 of the Amended Application.[41] Objections to the admissibility of this evidence are discussed below at [44] of these Reasons for Judgement.
[41] Transcript P4:L23-27, P5:L45-P6:L10.
The Court has also considered the transcript of the Final Hearing where both the Applicant’s Counsel and the Minister’s Counsel made oral submissions.
LEGISLATIVE PROVISIONS
Section 360 of the Migration Act requires the Minister to invite an applicant to appear before the Tribunal to give evidence as follows:
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2)Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
The Court will now consider each ground of review advanced in the Amended Application.
CONSIDERATION
Ground 1
Ground 1 relates to the Tribunal’s alleged non-compliance with s 360(1) of the Migration Act and asserts that this non-compliance amounted to a denial of procedural fairness to the Applicant. Ground 1 comprises four (4) particulars which I shall address in turn. It is noted that the Applicant’s Submissions did not address the individual particulars in Ground 1 with any clarity or distinctness. This leaves much of the work in deciphering exactly how the Applicant’s substantiates his claims to the Court.
Particular 1(a)
The Applicant addressed Ground 1(a) at [7] of the ‘Legal Contentions’ section of the Applicant’s Submissions:
During the hearing, the Applicant maintained he did not understand why the original skills assessment was revoked and explained to the Tribunal that he was not aware that he had to obtain a new skills assessment until he received some advice from a migration agent before the hearing. If the applicant had been advised by the Tribunal that a valid skills assessment was the only visa eligibility criterion in issue, he would have been in a position to apply for one at an earlier point in time than 6 days before the hearing took place […]
(Emphasis added)
This claim gives rise to two (2) separate issues. The first relates to the eligibility criterion in cl 886.223 of the Regulations, and the second relates to the applicability of PIC 4020 and whether or not this criterion should have been dealt with by the Tribunal at the Tribunal Hearing.
To the first issue, the Applicant appears to imply that if he had been made aware that obtaining a valid skills assessment—the primary criterion for the grant of the Visa pursuant to cl 886.223 of the Regulations—was the only bar to his Visa approval, he would have availed himself of a valid skills assessment sooner. However, it is clear from the evidence before the Court that the Department had put the Applicant on notice of the requirement to obtain a new skills assessment by way of the 10 August 2010 Letter, the 8 February 2013 Letter and the 14 December 2015 Letter. Likewise, the Delegate’s Decision clearly stated that the Applicant did not meet the legal requirements of the Visa because of the TRA Revocation, and that when the Applicant had been contacted for comment about this issue, the Delegate had received no response.[42] The claim that the Applicant ‘would have been in a position to apply for [a valid skills assessment]’ had the Tribunal advised him that this was the only requirement is therefore plainly incorrect. On the face of the evidence, the Applicant clearly was on notice that he was required to have a valid Skills Assessment and whether or not there were other factors at play is immaterial in relation to that fact.
[42] CB 90.
I will now turn to the second facet of the ground plead in particular 1(a): that the Applicant’s ability to satisfy PIC 4020 was not in issue at the Tribunal Hearing and that this should have been raised by the Tribunal.
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL), the High Court was asked to consider the wording of s 425 of the Migration Act, a section analogous to s 360 of the Migration Act which is the subject of the Amended Application. In SZBEL, the plurality of the High Court stated in relation to procedural fairness, at [35]:
35. The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising I n relation to the decision under review”. […]
(Emphasis added)
The High Court considered that the wording of s 425 (and by extension s 360) of the Migration Act imposed upon the Tribunal an implied obligation to ensure an applicant is put on notice of the ‘dispositive’ issues on which the Tribunal basis it’s decision.[43]
[43] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [35].
At the Final Hearing, Counsel for the Minister made submissions in relation to the meaning of the phrase ‘dispositive’ in the context of SZBEL, and referred to [44] of that judgment at which the Court held that:
44. The Tribunal did not accord the appellant procedural fairness. The Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review.
(Emphasis added)
Counsel for the Minister submitted orally at the Final Hearing that High Court’s interchangeable use of the phrases ‘dispositive’ and ‘determinative’ in SZBEL suggested that the Court imbued them with the same meaning.[44]
[44] Transcript P23:L29-L33.
It is apparent from the Tribunal’s Decision and the transcript of the Tribunal Hearing, annexed at ‘MP-1’ of the Second Psihogios Affidavit that the only ‘determinative’ issue for the Tribunal Member at the Tribunal Hearing was whether the Applicant had obtained a valid skill assessment outcome. The same may be said for the Delegate in the making of the Delegate’s Decision, where the only statutory provisions cited were the criteria prescribed by cl 886.223 (and cls 885.222 and 887.212 which the Delegate also considered in the alternative to cl 886.223).[45]
[45] CB 91.
The Minister submitted that the Tribunal was not required ‘to identify which matters were not in issue’ at the Tribunal Hearing (emphasis in original),[46] reasoning for which is in accordance with the High Court’s findings in SZBEL, at [36] to [37]:
[36] […] But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.
[37] That this is the consequence of the statutory scheme can be illustrated by taking a simple example. Suppose (as was the case here) the delegate concludes that the applicant for a protection visa is a national of a particular country (here, Iran). Absent any warning to the contrary from the Tribunal, there would be no issue in the Tribunal about nationality that could be described as an issue arising in relation to the decision under review. If the Tribunal invited the applicant to appear, said nothing about any possible doubt about the applicant’s nationality, and then decided the review on the basis that the applicant was not a national of the country claimed, there would not have been compliance with s 425(1); the applicant would not have been accorded procedural fairness.
[46] First Respondent’s Outline of Submissions, filed 1 August 2017 (Minister’s Submissions), [26].
In this case, the Tribunal did not give any warning to the Applicant that the matter of PIC 4020 was an issue arising in relation to the Delegate’s Decision under review. The Tribunal’s Decision was made on the basis that the Applicant did not have a valid skills assessment at the time of the Tribunal Hearing.
The Court finds no jurisdictional error made out in relation to the allegation at Ground 1(a).
Ground 1(b)
Ground 1(b) relates to the Tribunal’s alleged failure to allow the Applicant to explain why he did not obtain a new skills assessment between the TRA Revocation and the Tribunal Hearing.
During the Final Hearing, Counsel for the Applicant made submissions about the admission of an audio recording of the Tribunal Hearing into evidence, submitting that the transcript did not ‘evoke the nature of the interchange between the [Tribunal] and the [Applicant]’.[47] Counsel for the Minister responded by submitting that the Applicant had not particularised which part of the audio recording the Applicant relied on, and therefore the Minister was not on notice ‘as to how precisely the [Applicant] puts it that the [Tribunal] denied the [Applicant] procedural fairness’.[48] The Court ultimately allowed this audio recording into evidence.[49]
[47] Transcript P37:L8-L10.
[48] Transcript P15:L4-L6.
[49] Transcript P39:L27-L31, P40:L33-L35.
The Court has listened to the audio recording of the Tribunal hearing, being an mp3 audio recording 25 minutes and 28 seconds in length (Tribunal Audio). The Court notes that it is apparent from the Tribunal Audio and the transcript of the Tribunal Hearing that the Applicant was asked the following questions during the Tribunal Hearing:
MR DRONJIC: Okay. Now the [Minister] refused your application because the [Delegate] found that you couldn’t satisfy it, [cl 886.223]. Now that clause requires that the skills of the applicant have been assessed by the relevant assessing authority as suitable for nominating an occupation. Do you understand that?[50]
[50] Affidavit of Maria Psihogios, sworn 26 January 2021 and filed 27 January 2021 (Second Psihogios Affidavit), ‘Annexure MP-1’, P7:L1-L5.
[…]
MR DRONJIC: So, why did the Trade Recognition Australia revoke your skill assessment?[51]
[51] Second Psihogios Affidavit, ‘Annexure MP-1’, P7:L31-L32.
[…]
MR DRONJIC: Do you have a positive skill assessment for your nominated occupation today as being the day of my decision?
INTERPRETER ONE: I’m now applying [for] the [TRA] assessment, is still processing, but I have the previous TRA (indistinct).
MR DRONJIC: Could you please answer my question? Could you? What I’m asking you and if you don’t understand me, again, I can clarify that through the interpreter for you and I will appreciate it if you can interpret this. Do you have, today, as of the day of my decision, a skill assessment for your nominated occupation?
MR SWE: You mean before revoke or after revoke?
MR DRONJIC: You’ve got one that was revoked in 2010, so you don’t have that one anymore. You don’t have it from 2010. Okay. Now I’m asking you, do you have it today? Now, at the time of my decision, do you have a positive skill assessment for your nominated occupation or not?
INTERPRETER ONE: No.
MR DRONJIC: How many times have you [applied] from 2010 until now to get the skill assessment done?
MR SWE: Before revoke?
MR DRONJIC: How many times?
INTERPRETER ONE: Only one time.[52]
[52] Second Psihogios Affidavit, ‘Annexure MP-1’, P11:L34-L55, P12:L1-L7.
[…]
MR DRONJIC: Why didn’t you apply from 2010 when the – application, when the skill assessment was revoked? That’s six years. You had six years to apply for the skill assessment?[53]
[53] Second Psihogios Affidavit, ‘Annexure MP-1’, P12:L26-L28.
[…]
MR DRONJIC: Does that primary decision record talks about replication of your skill assessment and the reasons why the application was refused?[54]
[54] Second Psihogios Affidavit, ‘Annexure MP-1’, P12:L45-L46.
[…]
MR DRONJIC: Okay. Well why didn’t you apply for a new skill assessment when you received the primary decision record in January?
INTERPRETER ONE: I didn’t know that I needed to reapply again.
MR DRONJIC: But it says that your previous assessment was revoked. The primary decision say that, and you provided me a copy of that decision.
INTERPRETER ONE: Yes, I understand that I – that my application has been revoked, but I don’t know that I need to reapply again.
MR DRONJIC: Why did you reapply then?
MR SWE: New agent told me that I have to reapply – I thought I told you that. The new agent I got in contact with last (indistinct) and then I try and get that order (indistinct) from my (indistinct) and then I reapply.
MR DRONJIC: Are you represented in these proceedings by a migration agent?
MR SWE: No.[55]
[…]
[55] Second Psihogios Affidavit, ‘Annexure MP-1’, P12:L55, P13:L1-L19.
The Court notes that the Applicant did not particularise any parts of the transcript where the Tribunal Member is said to cut off the Applicant or deny him the opportunity to explain his situation. Counsel for the Minister submitted that ‘no evidence has been provided by the [Applicant] as to [the] explanation the [Applicant] would have provided if he had been given the requisite opportunity and whether that explanation could have realistically resulted in a different decision’.[56] Counsel for the Minister also submitted that the Applicant had made no submissions as to why the length of the Tribunal Hearing, being 24 minutes in length, meant that the Applicant was not afforded sufficient opportunity to explain why he did not obtain a new skills assessment.[57]
[56] Transcript P21:L40-L43.
[57] Transcript P20:L31-L38.
The transcript of the Tribunal Hearing and the Tribunal Audio disclose that Applicant was given multiple opportunities to explain his circumstances.
The Court finds no jurisdictional error made out in relation to the allegation at Ground 1(b).
Ground 1(c)
Ground 1(c) relates to the Tribunal’s alleged failure to put to the Applicant its view that the Applicant could apply for another type of visa offshore if and when he obtained a favourable skills assessment.
As already discussed at [39] and [41] of these Reasons for Judgment, the only dispositive issue before the Tribunal was whether or not the Applicant held a positive skills assessment. The Applicant’s ability to obtain a different type of visa offshore was therefore immaterial.
The Court finds no jurisdictional error made out in relation to the allegation at Ground 1(c).
Ground 1(d)
Ground 1(d) relates to the Tribunal’s conduct during the Tribunal Hearing, which the Applicant alleges ‘would cause a reasonably well informed observer to conclude that the Tribunal had reached a decision that was not amenable to change regardless of the [Applicant]’s evidence’.
Counsel for the Applicant made submissions at the Final Hearing as to the length of the Tribunal Hearing and the ‘short’ and ‘curt’ manner in which the Tribunal Member spoke to the Applicant. [58] It was submitted that this manner alluded to the Tribunal Member already having made up his mind in relation to the Applicant’s case.
[58] Transcript P4:L23-27.
As already noted at [45] of these Reasons for Judgment, the Tribunal Member expressly enquired on multiple occasions throughout the Tribunal Hearing about the Applicant’s current circumstances and the reasons why he had not sought a valid skills assessment. The Tribunal’s Decision also expressly refers to the reasons provided by the Applicant during the Tribunal Hearing as to why he had not reapplied for a skills assessment.[59] The Tribunal Member’s repeated attempts to ascertain why the Applicant still did not have a valid skills assessment after six (6) years reveal that he was in fact amenable to the Applicant’s circumstances and had not already made up his mind.
[59] CB 245, [23].
The Court finds no jurisdictional error made out in relation to the allegation at Ground 1(d).
Ground 2
Ground 2 relates to the Tribunal’s alleged failure to determine the application according to law. This Ground is particularised with reference to the Tribunal acting ‘unreasonably in making an oral decision […] in light of the Applicant’s evidence that he had applied for a new skills assessment and was awaiting the outcome’. The Amended Application also refers to the irrelevant consideration of the Applicant’s ability to apply for another visa offshore, which the Tribunal allegedly took into account in making its decision.
In support of Ground 2, Counsel for the Applicant referred to the seminal High Court decision of Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) to support the proposition that the Tribunal had unreasonably failed to exercise its discretion to adjourn the Tribunal Hearing so that the Applicant’s new application for a skills assessment could be decided.[60]
[60] Transcript P6:L25-31.
In Li, the applicant had applied for a Skilled-Independent Overseas Student (Residence) (Class DD) visa which, much like the present case, required that at the time of the visa decision the applicant have a favourable skills assessment from a relevant assessing authority. The applicant in Li similarly applied to the TRA, and provided her skills assessment to the Minister, who refused her visa application on the basis that the some of the information provided to TRA was not genuine. The applicant applied to the then Migration Review Tribunal (MRT) for review of the Delegate’s decision and applied to the TRA for a second skills assessment prior to the Tribunal hearing. After the hearing, the MRT invited the applicant to provide further comment on her review application, and an agent for the applicant wrote back informing the MRT that the applicant’s second skills assessment had been unsuccessful, but that the applicant had applied to the TRA for review of its second decision. The agent requested that the MRT withhold the making of its decision until after the TRA review had been finalised. The MRT refused that request, affirming the decision of the Delegate.
The plurality of the High Court in Li found that the MRT’s decision to refuse the adjournment was unreasonable and had resulted in jurisdictional error. Of particular relevance to the facts now before this Court are the comments of French CJ, at [21]:
21. The MRT’s approach in this case, […] was captured succinctly, and apparently exhaustively, by the words “the applicant has been provided with enough opportunities to present her case”. It made no reference to the probability that the first respondent would be able, within a reasonable time, to secure the requisite skills assessment. The Minister submitted, against a straw-person argument not put, that there is no general obligation upon the MRT to adjourn a decision because the applicant for review “considers” that the passage of time will allow a visa criterion to be met. That was not this case. There was good reason to expect that the criterion would be met. The MRT denied the first respondent what would have been, in the circumstances, a reasonable opportunity to acquire the TRA skills assessment which was essential to her success. The first respondent’s migration agent had shown the MRT that there was a proper basis for expecting a favourable outcome in response to his request for a review by TRA. That was borne out by the event […] There was no practical countervailing consideration disclosed in the MRT’s reasons for refusing to defer its decision. The first respondent was denied procedural fairness and that denial constituted jurisdictional error.
In Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (Singh), the Full Court of the Federal Court expanded upon the findings in Li, stating, at [44]:
44. […] However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ […] calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”.
(Emphasis added)
In Singh, the applicant had applied for a Skilled (Provisional) (Class VC) Subclass 485 (Skilled — Graduate) visa and was required to provide evidence of competent English through an International English Language Testing System (IELTS) report pursuant to the Regulations. The Delegate refused the applicant’s visa on the basis of his IELTS scores, and applicant sought a review of this decision in the MRT. The applicant requested that he be allowed to submit the results of one (1) IELTS test he had already received, and two (2) that he was to receive, and the MRT agreed to adjourn the hearing until after the two (2) outstanding IELTS results had been received. The applicant failed to achieve the required mark when the two (2) outstanding results were received however indicated to the MRT that he would be applying for a re-evaluation of one (1) of the results and asked for a further adjournment on that basis. The MRT declined to grant the applicant a further adjournment and affirmed the Delegate’s decision, citing the time the applicant had been given to achieve a satisfactory IELTS result as the reason for the refusal.
Following the decision of Li, the Full Court of the Federal Court found in Singh that the MRT’s exercise of power was legally unreasonable, and cited the MRT’s failure to provide reasons for refusing the adjournment and failure to consider how long the re-mark would take as indicia that went to the finding of unreasonableness.[61] The Full Court of the Federal Court in Singh cautioned against the use of the facts of Li as a complete ‘factual checklist’ in determining if there has been unreasonable exercise of administrative power.[62] Instead, the Court said that ‘legal unreasonableness is invariably fact dependent’, and will require consideration of the legal principles which emerge from Li in the context of the evidence before a Court in any particular case.[63]
[61] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (Singh) at [65], [66], [73], [75].
[62] Singh at [42].
[63] Singh at [42], [43].
Distinct from Li and Singh, this case involves a situation where the Tribunal did not have before it an application for adjournment and instead considered the necessity of an adjournment, at [19] and [20] of the Tribunal’s Decision, on its own motion.[64] This is clearly distinguishable from Li, in which the applicant requested an adjournment and had provided evidence that the TRA was likely to grant the application for a second skills assessment because the decision was under review.[65]
[64] CB 245.
[65] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) at [21].
At the Final Hearing, Counsel for the Minister drew the Court’s attention to the reasoning of their Honours Hayne, Kiefel and Bell JJ in Li who held that ‘unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification’.[66] The Court was also taken to the reasoning of Gageler J, where his Honour said, at [106]:
106 The label “Wednesbury unreasonableness” indicates “the special standard of unreasonableness which has become the criterion for judicial review of administrative discretion”. Expression of the Wednesbury unreasonableness standard in terms of an action or decision that no reasonable repository of power could have taken “attempts, albeit imperfectly, to convey the point that judges should not lightly interfere with official decisions on this ground”.
(Footnotes omitted. Emphasis added)
[66] Li at [76].
The question now before this Court is whether or not the Tribunal can be said to have engaged, with evident and intelligible justification, with the likelihood that the Applicant would receive a positive skills assessment from the TRA, and whether it should have adjourned the matter on that basis until after the TRA had made its decision. The fact remains that the Applicant did not have a valid skills assessment for his nominated occupation when he came before the Tribunal, and in the six (6) years that had elapsed between the TRA Revocation and the Tribunal Hearing, the Applicant had only taken it upon himself to apply for a new skills assessment six (6) days before the Tribunal Hearing.
The Tribunal expressly noted that it ‘had considered whether, in the circumstances of this case, the evidence that the [Applicant] meets cl.886.223 is likely to be forthcoming’.[67] The Applicant had advanced no evidence as to the likelihood that he would be successful in his skills assessment application made 20 October 2016. As the Applicant did not provide any evidence of errors in the TRA Revocation, the Tribunal could not have been expected to infer that a different decision would have been made and adjourned the matter on that basis.
[67] CB 245, [20].
To the matter of the Tribunal’s alleged consideration of the Applicant’s ability to apply for another visa offshore, the Court notes that this matter has already been determined to be not dispositive within this application at [39], [41] and [50] of these Reasons for Judgment.
The Court finds no jurisdictional error made out in relation to the allegation at Ground 2.
CONCLUSION
The Amended Application fails to identify any jurisdictional error.
The Amended Application is therefore dismissed.
At the Final Hearing, the Minister sought costs fixed in the sum of $7,206.[68] This amount is in accordance with the costs allowed in pt 3 div 1 item 3 of sch 1 to the Federal Circuit Court Rules 2001 (Cth), applicable as at 10 June 2016. This amount is lower than the scale amount in force at the time of the Final Hearing. Accordingly, an Order will be made that the Applicant pay the Minister’s costs fixed in the sum of $7,206.
[68] Transcript P44:L5-15.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC. Associate:
Dated: 11 May 2023
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