Said v Minister for Immigration

[2017] FCCA 2887

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAID v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2887

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

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), cl.485.224

Cases cited:
Minister for Immigration and Citizenship & Li & Anor [2013] HCA 18

Applicant: ZIAD OSAMA HUSNI SAID

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 393 of 2017

Judgment of: Judge Vasta

Hearing date: 30 October 2017

Date of Last Submission: 30 October 2017

Delivered at: Brisbane

Delivered on: 30 October 2017

REPRESENTATION

Counsel for the Applicant: Mr Balzamo

Solicitors for the Applicant: Stephens & Tozer Solicitors

Solicitors for the First Respondent: Minter Ellison

ORDERS

1. The application filed on 3 May 2017 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to this application fixed in the sum of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 393 of 2017

ZIAD OSAMA HUSNI SAID

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application dated 3 May 2017, the Applicant, Ziad Osama Husni Said, asked this Court to review a decision made by the Administrative Appeals Tribunal on 5 April 2017.  That decision itself affirmed a previous decision by the delegate of the Minister to not issue the applicant a subclass 485 visa. 

2. In short compass, the issues here are found in cl.485.224 of the Migration Regulations 1994 (Cth). This clause provides that:

   “(1)The skills of the applicant for the applicant’s nominated skilled occupation have been assessed during the last three years by a relevant assessing authority as suitable for that position; and

   (1A)that if the assessment is expressed to be valid for a particular period, that period has not ended;  and

   (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.”

3. In this case, the Applicant had nominated the occupation of “developer/programmer”, which was an ANZSCO code 261312, a specified skilled occupation.  For that occupation, the relevant assessing authority is the Australian Computer Society.  Therefore, in making that application, it was mandatory that the Applicant had an assessment during the last three years by a relevant assessing authority as being suitable for that position.

4. The application was made on 23 February 2016.  The delegate refused the visa because the Applicant did not satisfy that clause that I have just read. 

5. It seems that the proper chronology is this.  Having lodged the application, the delegate then considered the lodged application that was made on 23 February 2016.  On 5 April 2016, the delegate requested some additional documents, including the skills assessment.  The delegate told the Applicant that he had 28 days within which to comply.

6. On 3 May 2016, the Applicant told the delegate that the skills assessment was taking longer than expected and he requested a further 28 days.  On 11 May 2016, the delegate granted a further seven days extension and further requested evidence of the delay from the authority issuing the skills assessment. 

7. On 18 May, at the end of the seven days, the Applicant told the delegate that the Australian Computer Society had declined to provide any documentary evidence of delay.  The delegate declined to allow any further extension and advised that the application was refused, on 31 May 2016, because of failure to meet the criterion; that is, having a satisfactory skills assessment.

8. The Applicant then lodged a review application with the Tribunal.  On 24 February 2017, he was asked by the Tribunal to provide evidence of a skills assessment at the hearing and the Tribunal said that good reason would be needed to be granted additional time.  The Tribunal conducted the hearing on 31 March 2017.  The Tribunal went through the evidence before it.  The Applicant still had not provided any skilled skills assessment at that time.

9. On 29 March 2017, two days before the hearing, the tribunal received a submission from the Applicant’s representative who said that the Applicant applied for the visa and nominated the “developer/programmer” occupation and had applied for a skills assessment on 19 February 2016 from the Australian Computer Society and that the Applicant regularly communicated with the Australian Computer Society about the skills assessment.

10. At the hearing on 31 March 2017, the Applicant was asked why it was that he did not have the skills assessment.  The Applicant then said that he had a negative skills assessment.  The Tribunal said to the Applicant that he had not provided that assessment to the department or to the Tribunal and that the Tribunal had not seen it. 

11. The Applicant said that after the decision from the department, he did not have any further communication with the Australian Computer Society about a positive assessment, but he received a skills assessment result for “developer/programmer” and it was negative.  He said that, after he had received that decision from the ACS, he did not apply for a skills assessment for any other occupation that would fit his skills set. That is because the Applicant could not change those requirements, having made the visa application that he had made, in any event.

12. He then said that, if he had been granted more time by the department to communicate with the Australian Computer Society, he would have been able to obtain a positive assessment.  He said he had not applied for any other occupation.  He had not applied for another skills assessment.  The representative then stated that they asked for more time from the department and gave a submission to the department but that was not successful.

13. The representative then requested that the matter be remitted to the department and that the Applicant be given a reasonable time to try and get a positive assessment.  Obviously, that could not be granted because the Tribunal has no power to remit matters back to the department.  Quite fairly, Mr Galloway, who has listened to the audio recording of the actual hearing, has conceded that there was an oral application or an oral request for an adjournment of the actual hearing.

14. The Tribunal did not grant any adjournment or certainly did not remit the matter back. It looked at the matter on the evidence that it had and, because there was no positive skills assessment, refused the application because the Applicant did not meet the criterion of having such a positive skills assessment.

15. The Applicant has come to this Court on three grounds:

    “1. The Second Respondent’s decision was affected by jurisdictional error in failing to act reasonably in refusing the Applicant’s request for a short adjournment to obtain material relevant to the review.

    2. The Second Respondent failed to accord the Applicant procedural fairness when it refused to defer making its decision until the Applicant obtained a fresh skills assessment from the Australian Computer Society.

    3. The Second Respondent failed to properly consider the Applicant’s request for a short adjournment and that failure contravened Part 5 of the Migration Act 1958, particularly sections 353, 360 and 363(1).”

16. Those three grounds really can be looked at as one.  The submission really has been made by the Applicant that the failure to allow an adjournment for the purposes of completing another skills assessment, which would hopefully be positive, was unreasonable and fits with what the authorities have said about legal unreasonableness. 

17. It seems to me that one has to actually look at the decision of the Tribunal itself.  The Tribunal has looked at the history, as I have given it.  At paragraph 27 of its reasons, the Tribunal said this:

    “27. The Tribunal had regard to the submissions and the evidence. However, the Tribunal did not agree to allow the applicant further time to apply for a skills assessment for his nominated skilled occupation.  The Tribunal considered that he had had sufficient time to obtain a positive skills assessment.  The applicant was represented by a migration agent from the time he applied for the visa.  The applicant had applied for the visa on 23 February 2016 and had had over one year to obtain a positive skills assessment for his nominated skilled occupation of Developer Programmer (ANZSCO Code 261312).  The applicant’s evidence was that the skills assessment from ACS was negative.  He did not apply for another skills assessment.”

18. It seems to me that the Tribunal has articulated why it was that they refused any form of adjournment.  Both the Applicant today and the Minister have referred to the authority of Minister for Immigration and Citizenship & Li & Anor [2013] HCA 18. At paragraph 81, the Court there said in that case:

    “81. The Minister appears to translate the Tribunal's reference to Ms Li having had sufficient opportunity as "enough is enough" and submits that if the Tribunal could not so determine, it would be required to hear, in effect, a series of applications which could be unending. This submission should be understood in the context that the criteria for the visa in question may be fulfilled at any time up to the point of decision.

    82. 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 and to improve upon the evidence. Of course it may decide, in an appropriate case, that "enough is enough", but it is not apparent how that conclusion was reached in the present case, having regard to the facts and to the statutory purpose to which the discretion to adjourn is directed.”

19. In this case before me, it is quite easy to see how it is that that conclusion was reached.  It was not an arbitrary decision and it was not an unreasonable decision.  The Applicant had quite a lot of time in which to have an assessment.  The fact that an assessment was had that was negative, that the Applicant did not inform the Tribunal about this before the actual hearing and, it would seem, did not even inform his own representative about this matter, really is a pointer as to why it is that “enough is enough” applies in this case.

20. Having regard to all of those matters, I do not find that this decision was unreasonable and therefore I do not find that there is a jurisdictional error.  For that reason, I dismiss the application with costs in the sum of $5600.

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

Date:  7 December 2017