Padmanabhan v Minister for Immigration

[2016] FCCA 339

FEDERAL CIRCUIT COURT OF AUSTRALIA

PADMANABHAN & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 339

Catchwords:
MIGRATION – Application for a skilled migration visa – applicant sought an adjournment to allow her to obtain a successful assessment from Trades Recognition Australia – whether the Tribunal’s decision refusing to grant an adjournment was legally unreasonable – application dismissed.

Legislation:

Migration Regulations 1994 (Cth), cl.485.221, Sch.2

Minister for Immigration and Border Protection v Pandey and Ors [2014] FCA 640

First Applicant: GEETHUMOL KANNARKATTUPARAMBIL PADMANABHAN

Second Applicant: AMANDEEP SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1669 of 2014

Judgment of: Judge Jones

Hearing date: 5 October 2015

Date of Last Submission: 5 October 2015

Delivered at: Melbourne

Delivered on: 19 February 2016

REPRESENTATION

Solicitors for the Applicants: Self-Represented

Counsel for the Respondents: Mr Wood

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The name of the Second Respondent be amended to ‘Administrative Appeals Tribunal’.

2. The application for judicial review filed on 14 August 2014 be dismissed.

3. The Applicants pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1669 of 2014

GEETHUMOL KANNARKATTUPARAMBIL PADMANABHAN

First Applicant

AMANDEEP SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for judicial review of a decision of the (then) Migration Review Tribunal (“the Tribunal”) made on 18 July 2014, affirming a decision of a Delegate of the Minister for Immigration and Border Protection made on 25 June 2012 refusing to grant the Applicants Skilled (Provisional) (Class VC) (Subclass 485) visas (“Subclass 485 visa”).

2. The First Applicant is the primary Applicant and will be referred to as the Applicant in this decision. In her application for the Subclass 485 visa, the Applicant nominated the occupation of cook, which is a specified skilled occupation. It was a requirement for the grant of a Subclass 485 visa that the skills of the Applicant for the Applicant’s nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation: cl.485.221(1), Sch.2 to the Migration Regulations 1994 (“the Regulations”). Pursuant to the appropriate Ministerial Instrument: IMMA 12/068, the relevant assessing authority was the Trades Recognition Australia (“the TRA”).

3. The Tribunal decided that the Applicant did not meet the requirements of cl.485.221(1) of the Regulations as, at the time of its decision, the Applicant’s skills for her nominated skilled occupation had not been assessed by the TRA. The Tribunal stated (CB 100 at [14]):

   “The Tribunal acknowledges the evidence before it indicating that the applicant has applied for a positive skills assessment from TRA and, as set out below, the Tribunal allowed additional time following the hearing to enable that process to occur. However, the information provided to the Tribunal by the applicant confirms that her most recent skills assessment application was unsuccessful and that her review of that decision was also unsuccessful. The Tribunal finds that there is no evidence before it to show that the applicant’s skills have been assessed as suitable for the nominated skilled occupation by the relevant assessing authority. The applicant therefore does not satisfy the requirements of cl.485.221(1).”

4. The Applicant’s ground of review set out in her application filed 14 August 2014 is as follows:

   “Migration Review Tribunal didn’t give me time to get the result of my Trade Recognision (sic) Application.”

5. In her affidavit filed 12 February 2015, the Applicant attaches a successful TRA assessment dated 26 August 2014 for the occupation of “cook”. She deposes that the last time she applied to the TRA was 10 July 2014, that she received confirmation on 6 August 2014 that the TRA had received her submission and was advised on 26 August 2014 that she had been assessed as successful for the occupation of cook. She deposes that if the Tribunal had given her the “last chance” to get her TRA, she would have been successful before the Tribunal.

6. At the proceedings before the Court, as the Applicant was self-represented, I explained to her the nature of judicial review proceedings and how they differ to merit review proceedings conducted by the Tribunal. I explained that the function of the Court is to examine the decision of the Tribunal and decide whether there had been jurisdictional error, or, as I put it to her, “serious legal mistake.”

7. I asked her to explain to the Court why she said that the Tribunal did not give her the opportunity it should have.

8. The Applicant said that she applied three times to the TRA and each time they rejected her application. She said they did not explain to her why they rejected her application and what papers they needed. She said she gave evidence of her final application made on 10 July 2014 to the Tribunal, but the Tribunal rejected her case. She said that the Tribunal ought to have given her another opportunity to provide evidence of a successful TRA because in the end she was successful and she fulfils the criteria now to get that visa.

9. I agree with the Minister’s characterisation of the Applicant’s ground of review as, the Tribunal unreasonably refused to adjourn the hearing of the Applicant’s application for review and thereby committed jurisdictional error.

Did the Tribunal unreasonably refuse to adjourn?

Relevant principles

1. In Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41], Wigney J stated:

   The relevant principles relating to legal unreasonableness in the context of decisions by the Tribunal to refuse adjournment applications have been the subject of recent extensive analysis by the High Court in Li and this Court in Minister for Immigration and Border Protection v Singh[2014] FCAFC 1 (Singh). The relevant principles may be summarised as follows:

   (a)     The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].

   (b)     Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].

   (c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].

   (d)     In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].

   (e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].

   (f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].

   (g)     There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].

   (h)     The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].

   (i) It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].

   (j) Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].

2. I have respectfully adopted these principles in deciding whether the decision of the Tribunal to refuse the adjournment was legally unreasonable.

The Applications for Adjournment

1. The Minister has helpfully summarised the factual background regarding the Applicant’s application for further time in which to submit a successful TRA. This summary is set out below.

2. On 24 October 2013, the Applicant sent the Tribunal a letter, which relevantly stated (CB 67):

   Hi Sir,

   I am [Applicant] writing this letter to let you know that; I have booked an IELTS test which is on 9/11/13. I kindly requesting you to give me extention (sic) till I get the result of this test which will get 13 days after the test date. I have asked my agent about my TRA and he said it is still pending because of IELTS 6 each, which I dont (sic) have now. I am attaching the confirmation of my IELTS test document with this letter.

3. On 27 November 2013, the Applicant wrote to the Tribunal, and stated (CB 70):

   Dear Sir,

   I am [Applicant] writing (sic) this letter to let you know that, I got 6 in each for my last IELTS Test. I am submitting my certificate with this letter. I am realy (sic) thankful to you for giving me a last chance to write IELTS.

   I got my certificate by post today morning only. I have to update this with my TRA aswell (sic), After (sic) submit IELTS. I don’t know how long it will take to get my TRA. So I am not sure how much time you can give me.

   Please help me about this.

4. On 20 December 2013, a Tribunal officer wrote to the Applicant, and stated (CB 74):

   Dear [Applicant]

   The Tribunal Member has asked me to advise you that he will hold off on finalising the decision in this matter until 31 January 2014, to allow time for your skills assessment from TRA to be completed.

   Please provide your skills assessment, or a status update, by the end of January 2014 so that the Tribunal knows what’s happening.

5. On 17 February 2014, a Tribunal officer telephoned the Applicant. The officer made a file note of the conversation, which stated (CB 76):

   Called the Applicant again, was able to get through – she advised that the TRA has just rejected her skills assessment as they were unable to contact the business owner that she cited (she said this was because he changed his mobile number). She is now submitting a review with TRA to dispute their findings – I asked her to send this information through to us, which she said she will as soon as she has visited  the business owner, which she said will be tomorrow or the 19^th of Feb. I said I would update the Member regarding this information and he will direct us from there.

6. On 25 February 2014, the Applicant wrote to the Tribunal, and stated (CB 77):

   I am [Applicant] writing (sic) this letter to let you know that, my TRA Application has been rejected because of my employer failed to attent (sic) their call.

   When I talk with my employer, he told me that his phone was out of order during a week so. Now I applied for review today and I paid $310 as review fees. I am attaching the receipt with this, when I get the confirmation for them tomorrow I will submit that too.

   I kindly request you to give me some more time.

7. On 28 February 2014, a Tribunal officer wrote to the Applicant, and stated (CB 81):

   Dear [Applicant]

   I am writing about the applications for review made by you in relation to decisions to refuse to grant Skilled (Provisional) (Class VC) visas.

   I refer to your correspondence received on 25 February 2014. The Tribunal requests that you provide the following for consideration.

   ·   a copy of the TRA refusal letter; and

   ·   evidence that you have applied for a review of the TRA decision

   Please provide the information by close of business Friday 7 March 2014. Please contact me if you have any queries.

8. On 6 March 2014, a Tribunal officer telephoned the Applicant. The officer made a file note of the conversation, which stated (CB 82):

   Called RA as per Member’s task. The applicant advised that she received the email from [the Tribunal officer]. I said that the Tribunal will allow time for the TRA skills assessment to be completed, and that when she receives the outcome from TRA, she needs to inform the Tribunal immediately. I advised that in any case, she needs to provide a status update to the Tribunal by 18 April 2014, advising us if she has still not received the skills assessment, and when she expects she may receive it. The RA said she understood and thanked me for the call.

9. On 17 April 2014, the Applicant wrote to the Tribunal, and stated (CB 83):

   Dear Sir

   I [Applicant] writing this letter to let you know that my TRA application has been rejected on 31^st of march 2014, because TRA was not able to establish links to the mobile number provided on the work statement with the business.

   So I contacted my employer again then he provided me more documents as (ATO papers, Statutory declaration) to re-apply (sic) the TRA. With the help of these documents so I already applied (sic) TRA again on 16^th april 2014 and my TRA reference number is TRA14/999300371 I am attaching the documents with this letter which will make a clear picture of my situation, so please give me one more chance to get my TRA done.

10. On 6 May 2014, a Tribunal officer telephoned the Applicant. The officer made a file note of the conversation, which stated (CB 88):

    The rep called back and I advised that the Tribunal will allow time for the review of her TRA skills assessment to be completed. I requested the RA to advise the Tribunal immediately when she has an outcome from TRA and, in any event, to provide a status update to the Tribunal by no later than 13 June 2014

11. On 13 June 2014, the Applicant wrote to the Tribunal, and stated (CB 89):

    Hi Sir,

    I am [Applicant] writing this letter to inform you that I havn’t (sic) got my TRA yet. As per MRT today is my last date.

    For my TRA payment was done on 16^th of April 2014 But I got the conformation (sic) letter from them on 1^st of May 2014 so According to this its (sic) not 8 weeks yet. I am expecting the result by end of June 2014 or first week of july. So please give me bit more time to get my TRA result

12. On 17 June 2014, a Tribunal officer telephoned the Applicant. The officer made a file note of the conversation, as follows (CB 94):

    The RA returned a missed call from the Tribunal and I advised that there is a note on the case to advise her that an extension has been granted until 11 July 2014 for her to provide information. She thanked me very much.

13. On 11 July 2014, the Applicant wrote to the Tribunal, and stated (CB 95):

    Dear Sir,

    I [Applicant] writing this letter to let you know that my TRA application has been rejected so I applied my TRA with a good lawyer this time so he is going to add more proof of the business which will prove Sunil Verma was the owner of this business the time periode (sic) I worked in HAVE MORE restaurant, so I am pretty sure this time I am going to get my TRA approved.

    So please give me the last chance to get my TRA. ME and my employer we are sure that I am going to get my TRA this time. If in case I don’t get my TRA this time then you can make your decision. But kindly give me the last chance. I know I am taking to (sic) much time to get my things done but this is about my future and i (sic) know that I worked in that restaurant so please.

    I will be really thankful to you

The Tribunal’s reasons for refusing further time

1. The Tribunal’s reasons for continuing to provide the Applicant with time for the TRA to assess her most recent application for skills assessment are (CB100 to 101 at [16] to [17]):

   16.    In making the above findings, the Tribunal notes the applicant’s request to delay the finalisation of this matter to enable her time to submit a fresh skills assessment application and to have that application considered by TRA. However, the Tribunal is not prepared to delay the finalisation of this matter any longer. In making this decision, it is useful to set out briefly the history of the applicant’s attempts to date to obtain her positive skills assessment. The Tribunal observes that, according to her application to the Department, the applicant initially applied for a skills assessment on 24 May 2011. When asked about this at the hearing, the applicant had no knowledge of this skills assessment application and, in the absence of anything contrary before it, the Tribunal infers that that skills assessment application was unsuccessful. Following the hearing, the Tribunal allowed the applicant further time in which to consult with her agent and provide evidence of competent English and a positive skills assessment. On 16 December 2013, the applicant provided to the Tribunal an IELTS test which met the relevant definition for competent English and she also provided evidence of having lodged a fresh skills assessment application with TRA. The Tribunal extended its deadline until 31 January 2014 to allow time for the applicant’s skills assessment application to be assessed. The applicant was directed to provide a copy of the skills assessment, or status update, by the end of January 2014. On 17^th February 2014, having heard nothing from the applicant, the Tribunal telephoned the applicant to enquire as to the status of her skills assessment application. The applicant advised that her skills assessment application had been rejected as TRA was unable to contact the relevant business owner to verify her work experience. She advised that she was submitting a review with TRA. The applicant subsequently provided to the Tribunal a short letter confirming that she had applied to TRA for a review. On 28 February 2014, the Tribunal requested that the applicant provide a copy of her TRA refusal letter and evidence that she had applied for a review of the TRA decision. Whilst the applicant provided to the Tribunal evidence of having applied for a review, she did not provide a copy of her TRA refusal letter. Nevertheless, on 6 March 2014, the Tribunal contacted the applicant to advise that it would allow further time for her to pursue her TRA review and it requested that she provide a status update by 18 April 2014. The Tribunal subsequently extended this deadline until 13 June 2014 and then until 11 July 2014. On 11 July 2014, the applicant notified the Tribunal that her TRA application had been rejected. She requested further time to enable her to submit a fresh TRA skills assessment application and noted that she was applying with a good lawyer who would add more proof of her employer which made her confident of having her skills assessment application approved.

   17.    In the Tribunal’s view, the applicant has already been afforded more than sufficient time to obtain evidence to show that her skills have been relevantly assessed as suitable for her nominated occupation. The Tribunal notes that more than three years have now passed since her application to the Department was first lodged. Since that time she has effectively made three skills assessment applications, including her initial application referred to in her application and her most recent application and subsequent review. All attempts have been unsuccessful. Notwithstanding the applicants claim that her fresh skills assessment application will succeed because she is using a good lawyer who will provide additional evidence, on the limited material before the Tribunal and in light of her past history of unsuccessful skills assessment applications, the Tribunal does not accept that the allowance of further time is likely to yield a different outcome in this matter.”

1. It is a matter of record that, some five weeks after the Tribunal’s decision, the Applicant was informed by the TRA that her application for the skilled occupation of “cook” had been successful.

2. No doubt the Applicant feels that her application for further adjournment to the Tribunal before finalising its decision was vindicated by this successful TRA assessment. However, the fact that the Applicant obtained a successful assessment shortly after the Tribunal decision is, unfortunately for the Applicant, not a factor which is relevant to the decision this Court must make on judicial review. The only question before the Court is whether, on the facts and circumstances known to the Tribunal at the time, the decision of the Tribunal to refuse the adjournment was legally unreasonable.

3. The Tribunal was aware, and indeed had information before it, that the Applicant had, for the fourth time, applied for an assessment by the TRA (CB 96). The factors the Tribunal had regard to in deciding not to allow the Applicant further time to obtain the TRA’s assessment of this application can be summarised as:

   a)the Applicant had had three years, from the time of her application for the Subclass 485 visa, to obtain a successful TRA assessment;

   b)in that time, the Applicant had made three attempts to obtain such an assessment from the TRA , none of which were successful; and

   c)the Applicant informed the Tribunal that she had been assisted in her most recent skills assessment application by a lawyer and she was confident of a successful outcome.

4. The Minister submits that:[1]

   “In this case, it is both readily apparent and understandable why the Tribunal finally elected to determine the review when it did.

   37.1     In the period of more than three years since applying for a visa, the applicant had had abundant opportunity to obtain a satisfactory assessment of her skills by TRA.

   37.2     The Tribunal had already adjourned the review many times (at least 5, more depending on the accounting method) resulting in a total adjournment of approximately 9 months after the hearing in order to allow the applicant further opportunity to obtain a satisfactory assessment.

   37.3     Ultimately, the applicant made three applications to TRA for assessment of her skills, each of which was unsuccessful.

   37.4     There was no basis for the Tribunal to be confident that a further application was likely to be successful.”

   [1] First Respondent’s Outline of Submission at [37].

Conclusion

1. I am satisfied that the reasons given by the Tribunal disclose an evident, transparent and intelligible justification for its decision.

2. It is true that a differently constituted Tribunal might have decided to adjourn the finalisation of its decision until after the Applicant advised it of the outcome of her fourth application to the TRA. However, I am satisfied the outcome fell within the range of acceptable outcomes and consequently does not give rise to jurisdictional error.

3. I am also satisfied that having regard to the history of adjournments and the reasons given by the Tribunal, the Tribunal’s decision was not arbitrary, capricious or plainly unjust.

4. Accordingly, I find that the Tribunal’s refusal to grant the Applicant further adjournment was not unreasonable such as to give rise to jurisdictional error.

5. The Applicant’s application for judicial review will be dismissed with costs.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate: 

Date: 19 February 2016