Njura v Minister for Immigration

[2019] FCCA 2205

FEDERAL CIRCUIT COURT OF AUSTRALIA

NJURA v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2205

Catchwords:

MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

Khan v Minister for Immigration and Border Protection [2018] FCAFC 85

Applicant: STELLA ADLIKE NJURA

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 378 of 2018

Judgment of: Judge Vasta

Hearing date: 22 July 2019

Date of Last Submission: 22 July 2019

Delivered at: Perth

Delivered on: 22 July 2019

REPRESENTATION

Applicant in person

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the name of the First Respondent’s name be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. That the application filed 12 July 2018 is dismissed.

3. That the Applicant pay the costs of the First Respondent fixed in the sum of $5,000.

IT IS NOTED:

A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 378 of 2018

STELLA ADLIKE NJURA

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRATION SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 22 June 2018, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision not to grant the Applicant what is colloquially known as a 485 visa.  The decision, having been made orally on 22 June 2018, was made in writing on 8 August 2018.  On 12 July 2018, the Applicant filed an originating application in this Court to review the decision.

2. The decision that was made by the AAT is actually in very short compass.  It says this, and I will quote all of it:

   Based on the evidence before, including your oral evidence given today, I am not satisfied that when the application was made it was accompanied by evidence you had applied to the relevant assessing authority for an assessment of your skills for your nominated skilled occupation.  And for that reason I find you do not meet the requirements of clause 485.223 and I must affirm the decision made by the delegate.

3. The background to this is that the Applicant had been in Australia for some time and she had studied, and she had achieved very well.  She was making an application for a visa.  She said that she ticked the 485 visa application but now realises that she did not tick the right box. 

4. When she ticked her box, she knew that she had to do a number of things, including getting a report from the Federal Police as to her lack of criminal convictions and so on.  She has said to me, here today that she trusted the system would be able to fix this as it would have been noticeable by anyone that she applied for the wrong visa.

5. Whether that be so or not, what the Applicant says to me now is that, here today, she does have an assessment as to her skills and she has firstly asked that the application for a 485 visa be changed to an application for the appropriate visa that she wished. Secondly, that the 485 visa that she applied for, now, take into consideration the fact that she has the appropriate skills assessment. 

6. It is very easy to feel sympathetic for the Applicant.  It does seem, even though she says that she used a migration agent, that she has somehow made an error in her application.

7. However, as I have explained to her here today, this application is for a review of the AAT decision.  What the AAT decision was about was the application that was before it.  That was an application for a 485 visa. 

8. Clause 223 of Schedule 2 mandates that such an application must be accompanied by evidence that the Applicant has applied for a skills assessment.  The Applicant has acknowledged that the application that she made was not accompanied by such evidence.  What she is really saying is that fairness dictates that either of the two options that she has asked for be entertained by a Court.

9. Her grounds of application were and I will read them as they appear in the originating application:

   1. Lodge the 485 visa without attaching skills assessment.  However the law states you should be able to provide it thereafter.  I received a positive assessment from CPA after my visa application, which makes me legible [sic] for the visa.  I have also attached prove [sic] of positive skill assessment.

10. Those grounds do not demonstrate any jurisdictional error.  It seems to me that the clause, 485.223, is very much a guillotine-type clause, in that you either have the evidence that you have applied or you do not have the evidence.  There is no grey area.  There is no discretion.  What happens after the Applicant has made the application for the visa cannot be taken into consideration. 

11. I have been helpfully referred to a decision of Khan v Minister for Immigration and Border Protection [2018] FCAFC 85, where the Court had to look at a matter where the clause in question also demanded that the application be accompanied by some other documentation. At paragraphs 15 to 17 of that judgment, Justice Tracey says this:

    15. The clause establishes an objective temporal test.  Whether or not there is some flexibility in the test, nothing decided in Anand permits the temporal requirement to import notions of fairness so as to avoid what might otherwise be an apparently harsh outcome for the visa applicant. The test does not turn upon concepts of blameworthiness or deservedness. A visa application is either accompanied by the necessary evidence or it is not.

    16. The test is objective. Clause 485.223 is one of a number of “time of application” criteria conditioning the grant of a skills visa. An obvious mischief addressed by the provision is to provide clarity to the visa applicant as to the person’s readiness to apply for the visa and the matters he or she needs to have done before he or she commences the visa application process.

    17. The provision aims to ensure that a person who applies for a visa has applied for his or her skill assessment and is therefore ready and willing to undergo the assessment at the earliest opportunity. If the provision was not enacted in that form, a visa applicant might use the visa application process, including processes associated with merits review by the Tribunal, to expand the time in which he or she acquires the skills necessary to fulfil the substantive visa criterion. In that way, the Regulations facilitate efficient decision-making and guard against delay by visa applicants who are not ready at the time of the visa application to undergo the necessary assessments.

12. At paragraph 21, His Honour then said:

    The Tribunal correctly construed cl 485.223 and correctly applied the provision to the facts before it. Having done so, there was no evidence that the appellant could provide so as to satisfy the Tribunal that the “time of application” criteria had been fulfilled.  Evidence that he had subsequently applied for a skills assessment and subsequently obtained a favourable skills assessment could not assist him. The appellant’s complaint that the Tribunal had exercised its powers unreasonably amounted to a complaint that the law operated harshly in the circumstances of his case.

13. In this matter, such reasoning is also apposite.  There is no evidence that, at the time of the application, the Applicant did accompany the application with such evidence.  Therefore, there cannot be shown to me that there has been any jurisdictional error. 

14. As unfortunate as it may seem, that leaves me with the only option that I have before me, and that is to dismiss the application.  I will amend the First Respondent’s name to “the Minister for Immigration, Citizenship and Multicultural Affairs”. 

15. I dismiss the application. The Applicant pay the Minister’s costs fixed in the amount of $5,000.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:       10 September 2019