Nguyen v Minister for Immigration & Anor
[2016] FCCA 1523
•8 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NGUYEN v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1523 |
| Catchwords: MIGRATION – Application for judicial review of decision of Migration Review Tribunal – consideration of cl.485.223 of Migration Regulations 1994 – whether documents sent 29 days after visa application lodged can be taken to “accompanied by” – consideration of authority – some flexibility in provision of documents possible – whether Tribunal correctly construed cl.485.223 of the Migration Regulations 1994 – Tribunal not falling into error – application dismissed. |
| Legislation: Migration Regulations 1994, cl.485.223 |
| Cases cited: Chidemo v Minister for Immigration & Anor [2010] FMCA 19 Nayeem v Minister for Immigration & Anor [2010] FMCA 618 Mevada v Minister for Immigrtion & Anor [2010] FMCA 616 Anand v Minister for Immigration & Citizenship (2013) 215 FCR 562 Winkler v Director of Public Prosecutions & Others (1990) 25 FCR 79 Todhunter v Attorney‑General of the Commonwealth of Australia and Another (1994) 52 FCR 228 Gulati & Anor v Minister for Immigration & Anor [2012] FMCA 491 Berenguel v Minister for Immigration and Citizenship (2010) HCA 8 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 |
| Applicant: | THI MAI HUONG NGUYEN |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 2074 of 2014 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 26 April 2016 |
| Date of Last Submission: | 26 April 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 8 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Burt |
| Solicitors for the Applicant: | Hammond Migration |
| Counsel for the First Respondent: | Mr Wood |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application filed on 26 February 2015 be dismissed.
The Applicant shall pay the First Respondent’s costs.
The name of the Second Respondent be amended to ‘Administrative Appeals Tribunal’.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2074 of 2014
| THI MAI HUONG NGUYEN |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Reasons for judgment
By her amended application filed on 26 February 2015, the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (formerly the Migration Review Tribunal) dated 17 September 2014. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a Skilled (Provisional) (Class VC) visa.
There is only one ground in the application, namely, that the Tribunal erred at law in finding that the Applicant’s application was not accompanied by evidence as required by cl.485.223 of the Migration Regulations 1994. The particulars show that the error asserted relates to the way in which the Tribunal interpreted the words “accompanied by” in the regulation. The first respondent’s position is that the Tribunal correctly interpreted the regulation, and indeed may have construed it too widely.
For the reasons that follow, I do not think that the Tribunal fell into error, although I think the narrow alternative construction of the regulation urged by the first respondent is unsustainable.
The background facts
What follows is not controversial.
On 10 April 2013, the applicant applied for a Skilled (Provisional) (Class VC) visa (CB1 - 11). At CB1, she responded to the question, “[h]ave you applied to a relevant assessing authority for an assessment of your skills for your nominated skilled occupation?” “Yes”. At CB9, under the heading “Applicant skills assessment”, the applicant recorded her nominated occupation as accounting, the name of the assessing authority as “Certified Practising Accountants of Australia”, the date of the skills assessment as “7 APR 2013” and the reference/receipt number 0000 (the last of these was correctly identified as clearly false by counsel for the First Respondent at the trial before me).
The application was referred to a delegate of the First Respondent, whose decision record is at CB31 - 33 dated 23 August 2013. The delegate noted that also on 10 April 2013 the Applicant lodged an application for a Temporary Graduate (Graduate Work) application (this appears to be a reference to the visa application as no separate documentation is contained in the Court Book). The delegate noted that no evidence was provided with the application to show that the Applicant applied for a skills assessment under the reference 0000 dated 7 April 2013.
The delegate noted that on 9 May 2013, the Applicant provided a receipt for a skills assessment dated 18 April 2013 with a reference number from Certified Practising Accountants of Australia (“CPA”) but that this receipt was not provided to the Department at the time of application. The delegate noted that:
“[r]egulation 485.223 stipulates that the application must be accompanied by evidence of applying for a Skills Assessment. I am not satisfied that when the application was made, it was 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.
Therefore, I am not satisfied that the applicant meets the requirements of regulation 485.223”.
The receipt from CPA is dated 18 April 2013 and is at CB26. It is common cause that the receipt was not provided to the Department until 9 May 2013, as the delegate recorded.
On 21 May 2013, CPA sent a skills assessment letter to the Applicant (CB68 - 69) effectively confirming that her skills had been assessed at a level appropriate for her visa application, and it is common cause again that that matter was before the delegate when the decision was handed down on 23 August 2013.
The Applicant applied to the Tribunal for review of the decision and several submissions were advanced by her migration agent, which are in the Court Book. These confirmed the relevant timeline, which included that the Applicant had posted her application for a skills assessment to CPA on 8 April 2013. The submissions noted, as was clearly the case, that the decision of the delegate was made well over 100 days after all the relevant information as to the Applicant’s skills assessment had been forwarded to the Department.
The decision of the Tribunal
The Tribunal’s decision record is at CB109 - 113. The Tribunal noted that the Applicant applied for the visa on 10 April 2013 and the reasons why the delegate refused the application. The Tribunal noted that at the hearing the Applicant’s representative submitted a copy of the Applicant’s CPA skills assessment application form signed 7 April 2013 and a further qualification from Charles Sturt University in accounting, which is not relevant.
At para.12 (CB111), the Tribunal recorded:
“Clause 485.223 requires that when the visa application was made, it was 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’.”
Those, indeed, are the words of the subclause.
The Tribunal noted at para.17 (CB111):
“At the hearing the applicant said that she had applied for the skills assessment through CPA Australia on 8 April 2013 (not 18 April 2013, which is the date on the receipt issued by CPA Australia). CPA Australia has subsequently provided a letter confirming they received a skills assessment application on 8 April 2013 which the applicant submitted to the Tribunal. On this basis, the Tribunal accepts that the applicant did apply for the skills assessment on 8 April 2013, which was before the visa application was lodged on 10 April 2013. However, as discussed at the hearing, the issue remains whether, at the time the visa application was made, it was accompanied by evidence that the applicant had lodged the skills assessment application, given this evidence, in the form of a receipt from CPA Australia, was only provided to the Department by the applicant on 9 May 2013 (and erroneously was dated after the visa application date).”
The Tribunal went on at para.18 to say:
“The representative submits that there is court authority for the notion that a document provided after the time of application may be considered to “accompany” the application in certain circumstances. He submits, therefore, that the main question for the Tribunal is what is an acceptable delay, when considering the following circumstances relevant to the current review application:
·The relevant “evidence” was provided 29 days after the application was lodged
·The decision was made 135 days after the application was lodged
·The designated skill assessments authority’s failure to provide evidence of lodgement in a timely manner
·The designated skill assessment authority’s failure to accurately record the application receive date on their documentation.
Taking into account these considerations in the context of the overall decision making time, the representative submits that 29 days is an acceptable delay in the applicant’s case.”
The Tribunal noted authority referred to by the representative which implies some sort of elasticity in the phrase “accompanied by”. The Tribunal further noted that a strict interpretation of the “accompanied by” phrase would result in all online visa applications failing to meet the criterion and noted the scope to go back and upload documents any time before the decision was made.
The Tribunal then referred to authority Chidemo v Minister for Immigration & Anor [2010] FMCA 19, Nayeem v Minister for Immigration & Anor [2010] FMCA 618 and Mevada v Minister for Immigrtion & Anor [2010] FMCA 616 (“Mevada”). Finally, the Tribunal considered the matter Anand v Minister for Immigration & Citizenship (2013) 215 FCR 562 (“Anand”), noting that in that case the Federal Court accepted that while evidence accompanying an application could be supplied after the application was lodged, there must nonetheless be a temporal connection with the application and that evidence supplied around the time of application might be sufficient.
The kernel of the Tribunal’s decision is at para.26 and following (CB112 - 113):
“In the Tribunal’s view, these authorities suggest that even if it is possible to submit documents after the application was made and not at the same time when the application is made, there must still be a temporal connection between the application and the documents that accompany it. The Tribunal notes that cl.485.223 has an added requirement that the evidence must accompany the application “when the visa application was made”. That, in the Tribunal’s view, supports the interpretation that the evidence must be submitted at, or (to give it the most generous interpretation) shortly after, or “around the time of the application”. The Tribunal has formed a view that a 29-day delay does not meet that temporal requirement.”
The Tribunal went on to dismiss the application accordingly.
A paraphrase of the parties’ written and oral submissions
Both parties sought to persuade the court that an expanded (the Applicant) or a restricted (the First Respondent) approach to the interpretation of cl.485.223 was to be preferred. Both agreed that there is no authority that has actually considered the particular wording contained in cl.485.223 and implicitly accepted that authorities involving other regulations or statutory contexts must be approached with a measure of caution.
Broadly put (and that is sufficient for these purposes), the Applicant submitted that authorities provided that the words “accompanied by” were not to be construed literally and had a measure of elasticity to them, with particular reference on the decision of Katzmann J in Anand. It was noted (written submissions para.26) that the elasticity concerned would not be sufficient to provide evidence at any time prior to the ultimate decision-maker concluding the matter.
Further, the Applicant pointed out that the flexibility referred to was consistent with online lodgement of the applications and that a broader interpretation would be consistent with general principles of administrative decision-making. Reference was made to the explanatory statement at the time of the introduction of cl.485.223 and the matters stressed by the Applicant’s agent referred to above were, effectively, repeated (see written submissions paragraphs 48 to 49).
It was noted that there was clear provision for the Minister to seek further documentation from an applicant where they were not initially provided, in any event.
The Minister’s submissions, once again by way of brief paraphrase, laid particular reference on the words “when the application was made, it was accompanied by evidence …”. It was submitted that the temporal connection is clear and that the use of the phrase “when the application was made it was accompanied by evidence” was to “make abundantly clear that the relevant evidence must be provided on the same date as the application was made”.
As with the applicant’s submissions, the authorities were traversed in some detail.
The Relevant Authorities
Although I have had regard to all the authorities to which I have been referred, the following, in my view, are those that are of particular relevance to the matter before the Court. In Winkler v Director of Public Prosecutions & Others (1990) 25 FCR 79 (“Winkler”), the Full Court of the Federal Court discussed the meaning of the words “accompanied by” in Article XI(2) of the Treaty on Extradition between Australia and the United States. At p.96, Wilcox and O’Loughlin JJ said, relevantly:
“Counsel concede that the phrase "accompanied by" is not to be read literally, in the sense of being required to be in the same envelope. But they say that, while it may be acceptable to speak of a request being "accompanied by" something sent subsequently, it is a misuse of language to speak of a request being "accompanied by" something sent previously. The concession that "accompanied by" is not to be construed literally is supported by Ex parte Muir (unreported, Queen’s Bench Division, Lloyd LJ and Macpherson J, 7 December 1987). In that case, Lloyd LJ and Macpherson J held that “accompanied by … such evidence” means accompanied by such evidence at the time when the decision to commit is taken. It is not necessary for us to determine whether we would go that far, but we have no difficulty with the proposition that the phrase “accompanied by” is sufficiently elastic to include all material submitted at about the time of the request and before the expiration of any relevant cut-off date; for example, a date by which, in the absence of the documents, the fugitive must be set at liberty.”
In Todhunter v Attorney‑General of the Commonwealth of Australia and Another (1994) 52 FCR 228, Spender J also considered the same treaty. At at p.239 his Honour said:
“I do not accept that “accompany”, when used in par 5 of the new Art XI is to be construed as if it meant “are supplied contemporaneously with”.
His Honour went on at p.242 to refer to the judgment in Winkler and set out the passage from the joint judgment of Wilcox and O’Loughlin JJ (and, indeed, with some extra extracts) at p.235. He noted at p.242 that Burchett J in the same decision had taken the view (at 119-120) that:
“…I have some difficulty with the proposition that the words ‘accompanied by’ in Art XI may be so loosely construed as to be satisfied by a document, received however late, as long as it arrives in time to be presented to the magistrate before he makes his decision whether or not to commit the fugitive to prison to await the warrant of the Attorney-General for his extradition.”
At p.243, his Honour continued:
“Because Winkler deals with a version of Art XI under the Treaty, the observations in that case are not directly applicable to this case. It does, however, provide support in a general way for two propositions. First, it is made clear in the judgment of Wilcox and O’Loughlin JJ and in the judgment of Burchett J that “accompanied by” in the context of the old Regulations does not have a strict temporal connotation. In my opinion, the expression “accompany” in the context of the new Art XI does not have the strict temporal connotation urged by the applicant. It seems to me, with respect, that this view is supported by Winkler.
Secondly, it is clear that their Honours were of the view that there were limits to the temporal flexibility of the expression, though there was a divergence between Wilcox and O’Loughlin JJ, on the one hand, and Burchett J on the other, as to where such limits might lie. The passages emphasised in the above judgments would support a submission that at least Ex 3 was not appropriately received by the Magistrate either because it did not accompany the extradition request or, more correctly, because the request was not supported by a description of facts as required by Art XI(3)(c). The observations are not specifically applicable to this case, based as they are on the old Art XI. Nonetheless, I also am of the view that the expression “accompany” in the new Art XI(c) is not one of unlimited flexibility and that it might also appropriately be subject to some limit.”
Counsel for the applicant sought to rely on the decision of Smith FM in Gulati & Anor v Minister for Immigration & Anor [2012] FMCA 491 (“Gulati”). That case required that the visa application be accompanied by evidence of application for an Australian Federal Police check. His Honour came to the conclusion at [36] that:
“These features of the drafting of cl.485.216 point to an intention not to impose a strict and immediate nexus between the visa application and the presentation of evidence of the AFP application.”
The above considerations suggest to me that clause 485.216 intends that a visa applicant could present the relevant evidence of an AFP application within any period subsequent to visa application which would be reasonably allowed for the obtaining and presentation of the necessary evidence. In my opinion, in this context it does not stretch the ordinary language of ‘accompanied by’ if it allows the provision of evidence within a reasonable time for the purposes of its subsequent administrative processing.
However, the context of the words and the purpose of the criterion do not suggest to me that there was an intention to allow that time to extend to the whole period before the visa application was ‘finally determined’ within the meaning of s.5(9) of the Migration Act, as was submitted by the applicant’s counsel.”
One of the decisions traversed by Smith FM in Gulati was the decision of Turner FM in Mevada. His Honour accepted that documents could be provided later, in that case eight days after the time of application, and still accompany the same within the ordinary English meaning of the words (see at [38]). It should be noted that his Honour was clearly impressed by the argument that it was physically impossible in an online application to file documents actually together with the application itself.
Both parties referred the Court to Anand which considered a different subclause again, but, once again, required that an application be accompanied by certain evidence. Relevantly, her Honour found at [28]:
“For the above reasons, I am prepared to accept that evidence accompanying an application could be supplied after the application is lodged. Still, there must be some temporal connection with the application. Evidence supplied at around the time of the application may be sufficient. I doubt, for example, if the accompanying evidence appeared in an annexure which through inadvertence had not been uploaded or attached to the application, but which was forwarded a day or so later, that anyone would argue that the evidence did not accompany the application.
It might even extend beyond that. Where, for example, an applicant indicated in his application or a document submitted with it that he would forward the evidence within the week and he did so, it might be said that the evidence accompanied the application. But the words “accompanied by” are not so elastic as to stretch to evidence submitted, as here, five months after the application was lodged and two days after the decision was made. Language cannot be stretched so far that it snaps (cf Wielgus v Removal Review Authority (1993) 1 NZLR 73 at 70). In contrast to the position in Berenguel, the construction for which Mr Anand contended would compromise the purpose of the regulations.
This is a reference to Berenguel v Minister for Immigration and Citizenship (2010) HCA 8 at 26, where the Court said:
Moreover, in this case, the construction for which the Minister contends leads to such plain unfairness and absurdity that it is not to be preferred. The alternative construction for which the plaintiff contends does not compromise the purpose of the Migration Regulations. There is nothing to prevent relevant information from being submitted to the Minister after lodgement of the application. Indeed, s 55 of the Act expressly provides for that to be done and requires the Minister to have regard to such information. The Act specifically provides that the Minister may have regard to up to date information and, where the purpose of the relevant criterion is to ensure that the standard of English language competency is recently ascertained, a construction which would deprive him of the most recent information seems to be antithetical to that purpose.”
Consideration
It needs to be borne in mind that the High Court stated in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39]:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text” (67). So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.
Here, the relevant phrase is cl.485.223, which reads:
“When the application was made, it was 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.”
It should be noted that neither the Applicant nor the First Respondent has suggested that the answers the Applicant herself provided at CB1 and CB9 constitute evidence in the relevant sense. It seems to be accepted that these are to be taken to be merely assertions by the Applicant rather than supporting evidence.
The evidence relied upon is the receipt dated 18 April 2013 (some 10 days after CPA actually received the application) and forwarded to the first respondent on 9 May 2013. There is no evidence, as far as I can see, of when the Applicant herself actually received that document dated 18 April 2013, but it seems more probable than otherwise that there was a measure of delay from its receipt by her until its forwarding to the Tribunal given the timelines concerned.
It should be noted that, pursuant to cl.485.2, primary criteria are specified for the grant of the subclass 485 visa. An applicant in the graduate work stream (such as the Applicant) is subject to primary criteria set out in clauses 485.21 and 485.22. Clause 485.2 also provides “all criteria must be satisfied at the time a decision is made on the application, unless otherwise stated”.
The phrase “when the application was made, it was accompanied by evidence” is used in a number of different places (see cl.485.212, cl.485.213, cl.485.214, cl.485.215). That phrase is again replicated in cl.485.223. It should be noted that the matters prescribed in
cl.485.213 (Australian Federal Police check) were considered by Smith FM in Gulati, but the terms of the regulation his Honour was considering was materially different (the terms of cl.485.216, as it then was, are set out at [2] in Gulati).
All of these requirements seem to be expressed in terms that make it imperative that the evidence required “accompanies” the application itself. This is because of the use of “when the application was made, it was accompanied.”
If taken at its most literal, and I understood counsel for the First Respondent to advance an alternative argument to that effect, it would seem to me to be unworkable given that it is not possible, as I understand both parties to agree, to actually send accompanying documentation with the online application. It therefore follows, in line with the High Court’s reasoning in Berenguel, albeit in different circumstances, that the sort of flexibility referred to in the authorities and encapsulated most recently by Katzmann J must surely be available. In my opinion, her Honour’s remarks in Anand are applicable notwithstanding the particular terminology used in cl.485.223.
The question then becomes whether the Tribunal fell into an error of law and in such a fashion that its decision should be set aside for jurisdictional error.
As will perhaps be readily apparent, I have arrived at the same interpretation of cl.485.223 as the Tribunal. It necessarily follows, therefore, that I do not think that the Tribunal erred in law and, therefore, did not so misconceive the matter that its jurisdiction was not properly exercised.
Conclusion
It is immediately apparent that this outcome is not, on one view, an efficient or fair one. The applicant, in substance, at all times had the qualifications required for the category of visa that she sought and she will not now be able to make another application, at least for some time. Nonetheless, the regulations are drafted as they are. The conclusion that the delay in the submission of the relevant “evidence” from 10 April 2013 to 9 May 2013 meant that the evidence did not accompany the application was plainly one open to the Tribunal on those facts. The application must be dismissed with costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 8 July 2016
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