Sandhu v Minister for Immigration

[2017] FCCA 2892

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANDHU v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2892

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – Skilled (Provisional) (Class VC) visa – where applicant’s skills assessment had gone missing – no jurisdictional error found – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), Schedule 2, cls 485.221, 485.224

Applicant: HARJEET SINGH SANDHU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2045 of 2017

Judgment of: Judge Street

Hearing date: 23 November 2017

Date of Last Submission: 23 November 2017

Delivered at: Sydney

Delivered on: 23 November 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms G Doyle
Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2045 of 2017

HARJEET SINGH SANDHU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal) made on 6 June 2017 affirming a decision of the delegate not to grant the applicant a Skilled (Provisional) (Class VC) visa.

2. The applicant is a citizen of India and applied for the visa on 31 December 2009. The delegate refused the grant of the visa on 21 December 2011. The delegate’s decision was renotified to the applicant on 15 September 2016.

The Tribunal’s decision

1. The applicant applied for review on 16 September 2016. The applicant was invited to attend a hearing by letter dated 2 May 2017, to be heard on 5 June 2017. The applicant appeared on that date to give evidence and present arguments.

2. The Tribunal identified the background to the application for review. The Tribunal identified that the delegate found the applicant did not satisfy the cl 485.221 and cl 485.224 criteria of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The Tribunal wrote to the applicant on 21 November 2016 inviting the applicant to provide information including evidence that his skills have been assessed as suitable by the relevant assessing authority for his nominated skilled occupation.

3. On 7 February 2017, the Tribunal received a telephone call on behalf of the applicant indicating the applicant was unable to provide a skills assessment. At the hearing, the applicant stated that he does have a skills assessment and that he worked in a restaurant that closed down in 2009. The Tribunal identified that to satisfy the primary criteria for the grant of a subclass 485 visa the applicant must have applied for a skills assessment for his nominated skilled occupation and then assessed as suitable for that occupation.

4. The Tribunal identified that the issue in the present case is whether the applicant met the criteria for the grant of the visa. The Tribunal referred to cl 485.221 requiring that, at the time of the decision, the applicant’s skills for the nominated skilled occupation had been assessed by the relevant assessing authority as suitable for that occupation. The Tribunal accepted that the applicant had nominated the occupation of cook, which is a specified skilled occupation. The Tribunal made reference to the assessing authority, being Trades Recognition Australia. The Tribunal found the applicant did not have a positive skills assessment by the Trades Recognition Australia.

5. The Tribunal found that the skills of the applicant for the applicant’s nominated skilled occupation of cook have not been assessed by the relevant assessing authority, being Trades Recognition Australia, as suitable for that occupation. The Tribunal found that as the applicant had not been assessed as suitable for the nominated skilled occupation by the relevant assessing authority the applicant did not meet the criteria under clause 485.221(1).

6. The Tribunal found that the applicant does not meet the requirements of clause 485.221 and does not meet the criteria for the grant of a visa. The Tribunal found the applicant does not satisfy the criteria for the grant of the visa and affirmed the decision under review.

Proceedings before this Court

1. On 27 July 2017, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence, and submissions. No such documents were filed.

Grounds in the application

1. The grounds in the application as follows:

   I lodged VC-485 visa application on 31st December 2009. At that time, an agent represented me. I submitted all required documents to him for skills assessment. My agent disappeared and all my documents were in his possession. DIBP refused my visa as my agent did not provided requested documents in time. This resulted in my visa refusal. My visa refusal notification was sent to agent on 21st December 2011, who was not contactable either by me or by DIBP. I never received refusal notification. I submitted my objection and DIBP agreed that I was not notified correctly. Accordingly DIBP sent me another notification on 15th September 2016. I appealed the decision to AAT but AAT did not give fresh look to my case and affirmed the decision.

   1. Administrative Appeals Tribunal and DIBP made error by not considering my genuine arguments regarding skills assessment.

   2. I was unable to find my skills assessment as my agent was disappeared. All my documents were lost and AAT made an error by not giving weight to the fact that this was beyond my control to get skills assessment for the study, which I have completed in 2009.

   3. AAT says, relevant authority has not assessed my skills, whereas I submitted all supporting documents to my participating agent. If agent has disappeared, I must not be punished for that.

   4. AAT says, as relevant authority does not assess my skills, I do not meet the requirements. I submit, I am happy to go through any type of practical test but I am unable to get those documents, which were submitted to participating agent in 2009.

   5. I nominated occupation as COOK ANZSCO CODE 4513-11. I worked for full12 months at restaurant, which makes me, qualify for COOK. I submitted my experience letter to participating agent. Now agent is disappeared, restaurant is closed, how can I find the supporting document

   6. Administrative Appeals Tribunal and DIBP completely ignored the fact that It was not my fault, rather some exceptional circumstances, which are beyond my control.

   7. Administrative Appeals Tribunal and DIBP overlooked the fact, how someone can produce 8 years old documents when business is closed.

   8. Administrative Appeals Tribunal and DIBP did not gave due respect to my arguments.

   9. Administrative Appeals Tribunal and DIBP made error by not accepting the fact that closure of business is not in my hands. I do not have any control on business. Without reference letter from restaurant, where I worked for 12 months, skills assessment can not be processed.

   10. Justice is sought in light of above facts.

Nature of the hearing

1. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant and legal error.

2. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that, in summary, the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair the decision would be set aside and sent back for further hearing. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair the application would be dismissed with costs.

3. The Court explained that it would have identified the evidence and then hear submissions from the applicant and then hear submissions from the solicitor for the first respondent and then hear submissions from the application in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

Submissions from the bar table

1. From the bar table, the applicant maintained that he was currently working and endeavouring to obtain a skills assessment. The applicant also referred to his previous employment going out of business and being unable to obtain the assessment that he desired.

2. The applicant’s submissions, in substance, invited this Court to engage in impermissible merits review. This Court does not have power to revisit the merits, nor does this Court have power to grant relief on compassionate grounds. Nothing that was said by the applicant from the bar table identified any relevant jurisdictional error.

Consideration

Ground 1

1. In relation to Ground 1, the Tribunal correctly identified the relevant criteria for the grant of the visa and the adverse finding by the Tribunal was open. The assessment required was a mandatory criteria that the applicant had to meet.

2. The applicant’s other arguments regarding his assessment could not overcome the failure to satisfy that mandatory criteria. There was no jurisdictional error as alleged in Ground 1 by the Tribunal.

3. On the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the material before the Court, the Tribunal complied with its requirements of procedural fairness in the conduct of the review. No jurisdictional error is made out by Ground 1.

Ground 2

1. In relation to Ground 2, this, in substance, invites the Court to engage in impermissible merits review. Ground 2 does not identify any jurisdictional error.

Ground 3

1. Ground 3 also fails to identify any relevant jurisdictional error by the Tribunal in finding that the applicant failed to meet the criteria. The applicant was not being punished, the Tribunal was required, in exercising its powers, to consider whether the applicant met the mandatory criteria. This is not a case where there could be said to be any fraud by the agent or the Tribunal. No jurisdictional error is made out by Ground 3.

Ground 4

1. In relation to Ground 4, this, in substance, is again an invitation to the Court to engage in impermissible merits review. No jurisdictional error is made out by Ground 4.

Ground 5

1. In relation to Ground 5, the closing down of the restaurant and the applicant’s experience invite this Court to engage in impermissible merits review. No jurisdictional error is made out by Ground 5.

Ground 6

1. In relation to Ground 6, the question of why the assessment had not been obtained is not something by reason of which the mandatory criteria could otherwise be satisfied. The Tribunal was not finding fault by the applicant but determining whether or not the mandatory criteria were met. The proposition that the applicant could not meet the mandatory criteria because of circumstances beyond his control does not give rise to any power by the Tribunal to overcome the mandatory criteria.  No jurisdictional error is made out by Ground 6.

Ground 7

1. In relation to Ground 7, this again is, in substance, inviting the Court to engage in impermissible merits review. No jurisdictional error is made out by Ground 7.

Ground 8

1. In relation to Ground 8, for the reasons already given, the Tribunal complied with its statutory obligations and the applicant’s arguments are not ones that could overcome the requirement that the applicant acknowledged he did not meet, which was a mandatory requirement. No jurisdictional error is made out by Ground 8.

Ground 9

1. In relation to Ground 9, this is, again, an invitation to the Court to engage in impermissible merits review. No jurisdictional error is made out by Ground 9.

Ground 10

1. Ground 10 is also an invitation to the Court to engage in impermissible merits review. No jurisdictional error is made out by Ground 10.

Conclusion

1. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  22 December 2017