Panth and Anor v Minister For Home Affairs and Anor (No.2) - [2020] FCCA 2406

FEDERAL CIRCUIT COURT OF AUSTRALIA

PANTH & ANOR v MINISTER FOR HOME AFFAIRS & ANOR (No.2)

[2020] FCCA 2406

Catchwords:
MIGRATION – Application for judicial review of a decision of the Administrative Appeals Tribunal to refuse the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act – where the applicants claim they did not receive notice of the Administrative Appeals Tribunal hearing – where the applicants were represented by a migration agent – where the migration agent does not assist the court – where satisfied the notice was sent to the migration agent – where satisfied the notice must be taken to have been received and that is not a rebuttable presumption – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 5(23), 65, 362B, 379A, 379C

Migration Regulations 1994 (Cth) sch. 2 pt. 485 cl. 485.224

Federal Circuit Court Rules 2001 (Cth) sch. 1, pt. 3.

Cases cited:

Minister for Home Affairs v DUA16 [2019] FCAFC 221

Minister for Immigration and Citizenship v Manaf (2009) 111 ALD 437; [2009]

FCA 963

Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005]

FCAFC 172

SZNZL v Minister for Immigration and Citizenship (2010) 186 FCR 271; [2010]

FCA 621

Patel v Minister for Immigration and Citizenship (2011) 198 FCR 62; [2011]

FCA 1220

SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189

First Applicant:

UMA PANTH

Second Applicant:

RAMESH SHARMA

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

ADG 94 of 2018

Judgment of:

Judge Young

Hearing date:

13 February, 5 June & 12 June 2020

Date of Last Submission:

12 June 2020

Delivered at:

Darwin

Delivered on:

28 August 2020

REPRESENTATION

First Applicant:

In person

Second Applicant:

In person

Counsel for the first Respondent:

Ms N Milutinovic

Solicitors for the first Respondent:

Sparke Helmore

ORDERS

The application is dismissed.
The first and second applicant pay costs to the first respondent in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADG94 of 2018

UMA PANTH

First Applicant

RAMESH SHARMA

Second Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 14 February 2018 affirming a decision of the Minister's delegate made on 25 September 2017 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under section 65 of the Migration Act (“the Act”).
The delegate refused to grant the visas because the first named applicant (“the applicant”) did not satisfy the requirements of clause 485.224 of schedule 2 of the Migration Regulations. Clause 485.224 provides as follows:
(1) The skills of the applicant for the applicant's nominated skilled occupation have been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation.
(1A) If the assessment is expressed to be valid for a particular period, that period has not ended.
(2) If the applicant's skills were assessed on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification was obtained as a result of studying a registered course.
On 13 October 2017 the applicants applied to the Tribunal to review the delegate's decision. The application was made through an online lodgement form. The applicant provided the name and address of a registered migration agent, Mr Rajesh Joshi, as their representative. The application specified the representatives email address as "[email protected]". According to the Tribunal’s records an email was sent to that address on 2 January 2018 advising that the applicants were invited to attend a hearing on 13 February 2018. There is no indication in the departmental records that that email was not received. In addition, on 6 February 2018 an SMS was sent to the applicant's telephone number reminding her of the hearing date and time.
The applicant says that she was not aware of the hearing date and as such did not attend. She says she was not advised by her migration agent of the hearing and she says that she did not receive the SMS. Her evidence about this was not challenged.
It should also be noted that between the time of the lodgement of the application on 13 October 2017 and the hearing date on 13 February 2018 there is no record of any other direct communication between the applicants and the Tribunal.
The applicant's grounds of review, edited for clarity, are as follows:
a)The applicants deny receiving any notice of the scheduled hearing for 13 February 2018 from the Tribunal.
b)Such important notice should be served on both the visa applicants and their representative, not only on their representative.
c)The applicants have been denied procedural fairness by not properly being advised of the hearing date and time of the case and that resulted in the applicants’ failure to provide any information to the Tribunal. The applicants deny having received any communication or notice of the hearing scheduled on 13 February 2018 at the Tribunal.
d)As the result of failure by the Tribunal to properly advise the applicants of the scheduled hearing on 13 February 2018, the applicants did not appear and did not provide any information to the Tribunal, which resulted in the Tribunal’s decision to affirm the decision of the delegate to refuse to grant the applicants’ visas.
e)As the refusal will harshly affect the lives of the applicants, the Tribunal should have given the applicants another opportunity to respond or appear before deciding whether to refuse the application.
The Tribunal considered the application notwithstanding the absence of the applicants and was satisfied that the applicants had been notified of the hearing in accordance with section 379A(5) of the Act, noting that the invitation to attend the hearing had not been returned to sender. The Tribunal decided pursuant to section 362B of the Act to make its decision on the review of the Minister’s delegate’s decision without taking any further action to enable the applicants to appear before it.
The Tribunal was satisfied that the applicant had not satisfied the requirements for her nominated skilled occupation as an accountant. It noted that the only skills assessment provided by the applicant was one dated 15 September 2017 which found that the applicant lacked the requisite English language proficiency for the assessing authority to approve her as suitable. The Tribunal found the applicant did not satisfy the criteria for the grant of the visa.
In the hearing before me the applicant attempted to tender in evidence another skills assessment dated 9 November 2017 (after the delegate’s decision) which was issued by another assessing authority. The nominated occupation identified in this assessment was internal auditor. The applicant was described as having “met the educational requirements of their nominated occupation for migration purposes”. The document was never given to the Tribunal. The first respondent (“the respondent”) objected to the tender of this document because it was not relevant to the question of jurisdictional error by the Tribunal. The tender was disallowed. (Given that the skills assessment describes a nominated occupation different to the one considered by the Tribunal it is doubtful whether the skills assessment would have been relevant to the Tribunal’s consideration anyway).
The applicant also asserted that the notification of the hearing had never been received by her migration agent. I allowed an adjournment for the applicant to submit evidence in relation to that claim. She filed an affidavit from the migration agent, Mr Joshi, where he claimed:
I did not receive any email for Uma Panth and Ramesh Sharma from Immigration for their subclass 485 Visa on my email inbox when I was representing them as an Immigration Agent.
I had indicated to the applicant that she should serve a subpoena on Mr Joshi to require him to give evidence by telephone if he was reluctant to appear. The Minister gave the applicant a notice saying that Mr Joshi was required for cross-examination but on the adjourned date Mr Joshi was not available. The applicant said that Mr Joshi had originally assured her that he would be present for cross-examination by telephone but that some eight days before the adjourned date he told her he would be unavailable. On the adjourned date the court attempted to telephone Mr Joshi but his number was not answered.
The matter was adjourned for one more week. During the interim Mr Joshi sent an email to my chambers saying that he was psychologically unfit to give evidence in a court because of his experience in family law proceedings five years ago. He provided a psychological report dated 2016 (four years before) which said that he was suffering from an anxiety disorder. Again on the second adjourned date the court attempted to telephone Mr Joshi but his number was unanswered.
I do not accept Mr Joshi's explanations as satisfactory. It had been made clear to Mr Joshi that he would be permitted to give evidence by telephone and his psychological report from 2016 said his anxiety disorder was in remission. I also accept he told the applicant and permitted her to believe from approximately March to May 2020 that he would appear and give evidence.
My overall impression was that Mr Joshi was unwilling to assist the court and was very unwilling to be cross-examined. I suspect that the reason is that he received the notification of the hearing on the day it was sent to him on 2 January 2018 but neglected to inform the applicants of the date. I permitted an enquiry into this issue because I was concerned that the migration agent’s conduct may have involved some element of fraud or misconduct which stultified the legislative scheme to afford natural justice in the way described by the High Court in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 and, more recently, by the Full Court of the Federal Court in Minister for Home Affairs v DUA16 [2019] FCAFC 221. However, I am not satisfied that is the case and that the most likely explanation of Mr Joshi's conduct, if he did fail to communicate the notice of the hearing to the applicants, is carelessness. In view of his refusal to cooperate with the applicants and his refusal to assist the court, I give his affidavit no weight.
The respondent submitted that the Tribunal’s invitation to the hearing complied with the statutory requirements set out in section 379A(5) of the Act and that pursuant to section 379C(5) of the Act the recipient is taken to have received the document. Counsel for the Minister pointed out that section 5(23) of the Act defines the phrase "is taken" to mean "is deemed".
The Minister also relied on Minister for Immigration and Citizenship v Manaf (2009) 111 ALD 437; [2009] FCA 963 and Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 as authorities for the proposition that section 379C is a statutory deeming provision and that it does not create a rebuttable presumption that notification has occurred. It was submitted that the sending of the document by one of the methods in section 379A means that the person is taken to have received the document regardless of whether it was actually received: SZNZL v Minister for Immigration and Citizenship (2010) 186 FCR 271; [2010] FCA 621 at [36]. I accept these submissions.
While I feel unable to make a definite finding that the notification of the invitation to the hearing was received by Mr Joshi, although I suspect that is the case, I am satisfied that the invitation was sent in accordance with the provisions of the Act and must be taken to have been received and that is not a rebuttable presumption. Accordingly, I am not satisfied that the complaint made by the applicants that their migration agent did not receive a notification is either established or, in the light of the statutory deeming of receipt of the notice, that it constitutes procedural unfairness. The grounds of review are rejected.
The Minister made a further submission that the application was in any event futile. The Minister said correctly that the only skills assessment before the Tribunal was one which said the applicant was not suitable for the nominated skilled occupation of accountant. The Minister submitted that there is no mechanism within part 485 of schedule 2 of the Migration Regulations that would enable the applicant to make changes to her nomination and the Tribunal was bound to refuse the application: Patel v Minister for Immigration and Citizenship (2011) 198 FCR 62; [2011] FCA 1220. It is not necessary to decide this.
The application will be dismissed. The applicants are to pay the first respondent's costs in the amount of $7,467, the amount appearing in division one of part 3 of schedule 1 of the Federal Circuit Court Rules.
The code of conduct for migration agents set out in Schedule 2 of the Migration Agents Regulations under the Migration Act stipulates that a migration agent “must always … (b) deal with his or her client competently, diligently and fairly”. I am not satisfied that Mr Joshi dealt with the applicants in accordance with this requirement. I propose to refer these reasons to the Office of the Migrations Agents Registration Authority.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate:

Date: 28 August 2020

CORRECTIONS

Reasons for Judgment, paragraph 9, line 9 –“...not relevant to the question of judicial error by the Tribunal.” Corrected to “…not relevant to the question of jurisdictional error by the Tribunal.”