Sandhu v Minister for Immigration and Border Protection
[2018] FCA 698
•7 May 2018
FEDERAL COURT OF AUSTRALIA
Sandhu v Minister for Immigration and Border Protection [2018] FCA 698
Appeal from: Sandhu v Minister for Immigration & Anor [2017] FCCA 2892 File number: NSD 2185 of 2017 Judge: WIGNEY J Date of judgment: 7 May 2018 Catchwords: MIGRATION – application for Skilled (subclass 485) visa – failure to satisfy mandatory criterion for grant of visa – failure to meet cl 485.221(1) of Schedule 2 to the Migration Regulations 1994 (Cth) – failure to have skills assessed as suitable by relevant assessing authority for nominated skilled occupation – no appellable error identified – appeal dismissed
PRACTICE AND PROCEDURE – application for adjournment of hearing to obtain legal assistance – no reasonable explanation for lack of notice or failing to obtain legal representation at an earlier time – adjournment application refused
Legislation: Migration Act 1958 (Cth), ss 476
Migration Regulations 1994 (Cth), regs 1.03, 2.26BB, cll 485.221 and 485.224 of Sch 2
Date of hearing: 7 May 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 53 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr M Cleary Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent made a submitting appearance, save as to costs ORDERS
NSD 2185 of 2017 BETWEEN: HARJEET SINGH SANDHU
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
WIGNEY J
DATE OF ORDER:
7 MAY 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Delivered ex tempore, revised from transcript)WIGNEY J:
In December 2009, Mr Harjeet Singh Sandhu, a citizen of India, applied for a Skilled (Provisional) (Class VC) (subclass 485) visa. Over a year later, a delegate of the Minister for Immigration and Border Protection refused to grant Mr Sandhu the visa, though it appears that Mr Sandhu was not properly notified of that decision for almost another five years. After he was properly notified, Mr Sandhu applied to the Administrative Appeals Tribunal for a review of the delegate’s decision. That review application was unsuccessful. The Tribunal affirmed the decision to refuse to grant Mr Sandhu the visa. Mr Sandhu challenged the Tribunal’s decision in judicial review proceedings commenced in the Federal Circuit Court of Australia pursuant to s 476 of the Migration Act 1958 (Cth). That application was dismissed by the primary judge on 23 November 2017.
Mr Sandhu now appeals from the decision of the primary judge. For the reasons that follow, Mr Sandhu’s appeal has no merit and must be dismissed.
BACKGROUND
On 31 December 2009, Mr Sandhu applied for the visa. To be eligible for the visa, Mr Sandhu was required to satisfy the criteria in Part 485 of Schedule 2 to the Migration Regulations 1994 (Cth), including, relevantly, cl 485.221. At the relevant time, cl 485.221 of Schedule 2 to the Regulations provided as follows:
(1) 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.
(2)If the assessment mentioned in subclause (1) is made on the basis of a qualification obtained in Australia while the applicant was the holder of a student visa, the qualification was obtained as a result of studying a registered course.
The phrase “skilled occupation” was defined in reg 1.03 of the Regulations, as follows:
skilled occupation means an occupation that is specified by the Minister in an instrument in writing for this definition as a skilled occupation for which a number of points specified in that instrument are available.
Regulation 1.03 also provided that “relevant assessing authority” meant a person or body specified under reg 2.26B. Regulation 2.26B provided as follows:
(1)Subject to subregulation (1A), the Minister may, by an instrument in writing for this subregulation, specify a person or body as the relevant assessing authority for:
(a) a skilled occupation; and
(b) one or more countries;
for the purposes of an application for a skills assessment made by a resident of one of those countries.
(1A)The Minister must not make an instrument under subregulation (1) unless the person or body has been approved in writing as the relevant assessing authority for the occupation by:
(a) the Education Minister; or
(b) the Employment Minister.
(2)The standards against which the skills of a person are assessed by a relevant assessing authority for a skilled occupation must be the standards set by the relevant assessing authority for the skilled occupation.
The Minister made an instrument under regs 1.03 and 2.26B(1) of the Regulations. The relevant instrument was Legislative Instrument IMMI 12/068.
In Schedule 1A to IMMI 12/068, the occupation of “cook” was specified to be a skilled occupation and the assessing authority was specified to be “TRA”, that is, “Trades Recognition Australia”.
In his visa application form, Mr Sandhu nominated his occupation as “cook” and indicated that he had undergone a skills assessment by TRA on 29 December 2009. The visa application provided a reference number for that assessment.
On 27 July 2011, the delegate wrote to Mr Sandhu requesting more information in relation to his visa application. Amongst other things, the delegate requested a certified copy of the skills assessment by the relevant assessing authority. It does not appear that Mr Sandhu responded to the delegate’s request. On 21 December 2011, the delegate refused to grant Mr Sandhu the visa on the basis that he did not satisfy cl 485.221 of Schedule 2 to the Regulations. The delegate was also not satisfied that Mr Sandhu met cl 485.224 of Schedule 2 to the Regulations, which was to do with the medical assessment that he was required to undertake for the purposes of the visa application. That finding is not relevant to this appeal.
On 21 December 2011, Mr Sandhu was supposedly sent a letter which notified him of the delegate’s decision, though it appears that the letter was only sent by email and may not have been received by Mr Sandhu. Further attempts were made to email the letter to Mr Sandhu on 20 and 21 February 2012. It would appear, however, that even if the letter was received, it did not contain the delegate’s reasons for the decision. The letter attached a “decision record” which purported to set out the reasons for the decision, but the version of that document that was attached to the 21 December 2011 letter appears to have been an incomplete template or pro-forma decision record which did not contain any meaningful reasons.
It seems to have taken the Minister’s Department another five years to recognise that Mr Sandhu had not been properly notified of the adverse decision concerning his visa. On 15 September 2016, a different delegate wrote to Mr Sandhu to inform him that the Department had assessed his case and found that he had not been correctly notified of the decision of 21 December 2011. Mr Sandhu was accordingly “re-notif[ied]” of the decision to refuse him the visa. The re-notification letter enclosed a copy of a decision record which actually contained reasons for the decision. The effect of the re-notification was that the 21-day time limit within which Mr Sandhu was required to seek a review of the delegate’s decision in the Tribunal began from the date on which he was taken to have received the re-notification letter.
On 16 September 2016, Mr Sandhu lodged an application for review of the delegate’s decision with the Tribunal.
TRIBUNAL’S REVIEW AND DECISION
On 22 November 2016, the Tribunal wrote to Mr Sandhu, via his representative, and invited him to provide evidence that his skills had been assessed as suitable by the relevant assessing authority for his nominated skilled occupation. The Tribunal noted that this was a requirement for the grant of the visa and that there was no such evidence presently before the Tribunal. The Tribunal also asked Mr Sandhu to provide evidence of the health examinations he was required to undertake for the grant of the visa.
On 5 December 2016, Mr Sandhu’s representative responded to the Tribunal’s letter, sending confirmation of a ‘Bupa Medical Visa Services Appointment’ scheduled for Mr Sandhu the following day. On 19 December 2016, Mr Sandhu’s representative forwarded the results of Mr Sandhu’s medical appointment to the Tribunal.
On 7 February 2017, Mr Sandhu’s representative again contacted the Tribunal, this time in relation to the skills assessment. The Tribunal’s case note from the call reads as follows:
Representative contacted regarding skills assessment. The applicant is unable to provide an assessment. His previous agent has all his paperwork. There is no new skills assessment and he is unable to provide one. End call
On 2 May 2017, the Tribunal wrote to Mr Sandhu and invited him to give evidence and present arguments at a hearing. The Tribunal also noted as follows:
We note that to date you have not presented evidence that your skills have been assessed by the relevant assessing authority for your nominated skilled occupation. Please provide evidence that your skills have been assessed by the relevant assessing authority for your nominated occupation at (or before) hearing. Please note that if you are unable to provide the relevant evidence, we will require good reason to grant you additional time to obtain it.
Mr Sandhu’s representative responded to the Tribunal’s invitation to the hearing, indicating that Mr Sandhu would be in attendance. Mr Sandhu did not, however, provide any evidence that his skills had been assessed by the relevant assessing authority for his nominated occupation. Nor does it appear that he sought any further time to obtain that evidence.
On 5 June 2017, Mr Sandhu appeared before the Tribunal to give evidence and present arguments.
The nature and content of Mr Sandhu’s evidence before the Tribunal is unclear. The Tribunal’s Reasons, which are extremely short, simply record as follows in relation to Mr Sandhu’s evidence (Reasons at [11]):
At the hearing the Tribunal informed the applicant of the Regulatory requirements. The applicant stated that he does not have a skills assessment. He worked in a restaurant that closed down in 2009. The applicant had confirmed that he had nominated the occupation of Cook.
There is an element of ambiguity in this summary of the Mr Sandhu’s evidence. That ambiguity arises because the documentary evidence suggests that Mr Sandhu had claimed, at least initially, that his skills had been assessed. In his visa application, Mr Sandhu stated that his skills had been assessed by TRA. A reference number and date were supplied. Mr Sandhu’s migration agent had also told the Tribunal on 7 February 2017 that Mr Sandhu was unable to provide an assessment because his previous agent had all the “paperwork”. That tended to suggest that Mr Sandhu had documentary evidence of his assessment, but it was with his former agent.
The ambiguity is whether, when Mr Sandhu told the Tribunal that he did not have a skills assessment, he was saying that his skills had not been assessed by TRA, or was simply saying that he did not have a copy of his skills assessment because his former agent had that document. It should also perhaps be noted in this context that the Tribunal’s Reasons did not fully or accurately record what Mr Sandhu’s agent had told the Tribunal on 7 February 2017. The Tribunal simply noted that the agent had simply told the Tribunal that Mr Sandhu was unable to provide a skills assessment (Reasons at [9]).
On 6 June 2017, the Tribunal affirmed the decision not to grant the visa to Mr Sandhu.
As already indicated, the Reasons are extremely brief. The Tribunal correctly identified the relevant criterion for the visa as being that Mr Sandhu’s skills for his nominated occupation of “cook” had been assessed by the relevant assessing authority, TRA. In respect of that criterion, the Tribunal found (Reasons at [17]):
The Tribunal finds that the skills of the applicant for the applicant’s nominated skilled occupation of Cook (ASCO 4513-11) have not been assessed by the relevant assessing authority, Trades Recognition Australia, as suitable for that occupation.
Having found that Mr Sandhu did not satisfy the requirements of cl 485.221 for the grant of the visa, the Tribunal affirmed the decision under review.
THE CIRCUIT COURT PROCEEDINGS AND JUDGMENT
Mr Sandhu applied to the Circuit Court for judicial review of the Tribunal’s decision. His application advanced the following grounds (as drafted):
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 full 12 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 cannot be processed.
10.Justice is sought in light of above facts.
Mr Sandhu relied on an affidavit, filed along with his application, which annexed the Tribunal’s decision and essentially repeated the grounds of review set out in his application.
The important point to note about Mr Sandhu’s application and affidavit evidence is that it appeared to suggest that his skills as a cook had been assessed by TRA, but that he was unable to produce documentary evidence of that assessment because his previous migration agent, who had all his “paperwork”, had disappeared. Mr Sandhu also appears to have told the primary judge that he had a skills assessment: see paragraph [5] of the Judgment of the primary judge delivered on 23 November 2017.
Mr Sandhu did not file written submissions in the Circuit Court. He did, however, make oral submissions. The primary judge summarised Mr Sandhu’s oral submissions in the following terms (Judgment at [14]):
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.
Unfortunately, the analysis and consideration of Mr Sandhu’s evidence and grounds of review in the Judgment is unhelpfully brief, rather cursory and at times formulaic.
In relation to grounds 2, 4, 5, 7, 9 and 10, the primary judge simply found that those grounds represented an invitation to the court to engage in impermissible merits review and that no jurisdictional error was made out by those grounds.
In relation to ground 1, the primary judge found that the Tribunal had correctly identified the relevant criterion for the grant of the visa, which was a mandatory criterion. His Honour stated that the “adverse finding” by the Tribunal was “open”. Regrettably, however, his Honour did not identify exactly what the adverse finding was, or what the evidence was that supported the conclusion that the finding was open. The primary judge then reasoned that, in light of the adverse finding, Mr Sandhu’s other arguments regarding his skills assessment could not overcome his failure to satisfy the mandatory criterion. The primary judge also asserted that the Tribunal had complied with its statutory obligations and had complied with its requirements of procedural fairness in the conduct of the review. Exactly what that finding had to do with Mr Sandhu’s case, or ground 1 of his application, is unclear.
The primary judge considered that ground 3 of Mr Sandhu’s application failed to identify any relevant jurisdictional error by the Tribunal. His Honour noted, in response to this ground, that Mr Sandhu was not being punished, as he had asserted, because the Tribunal was required, in exercising its powers, to consider whether Mr Sandhu met the mandatory criteria for the grant of the visa.
The primary judge also stated that this was “not a case where there could be said to be any fraud by the applicant’s agent, or the Tribunal”. It should be noted, in respect of that finding, that it does not appear that Mr Sandhu was alleging fraud on the part of his previous agent. He was simply asserting that his previous agent had all his paperwork, that he had been unable to contact the agent, and that this went some way towards explaining why he was unable to provide a skills assessment.
The primary judge said the following in relation to ground 6 of Mr Sandhu’s application (Judgment at [23]):
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.
What his Honour appears to have been saying is that Mr Sandhu’s explanation for why he was unable to obtain a skills assessment did not assist him. If his skills as a cook had not been assessed by TRA, he could not meet the mandatory criterion for the grant of the visa. It did not matter that he may have had a good explanation for why he was unable to obtain the assessment.
In relation to ground 8, the primary judge simply repeated his earlier finding that the Tribunal had complied with its statutory obligations. His Honour then asserted that Mr Sandhu’s arguments were “not ones that could overcome the requirement that the applicant acknowledged he did not meet, which was a mandatory requirement”.
The primary judge dismissed Mr Sandhu’s application with costs.
APPEAL GROUNDS AND SUBMISSIONS
Mr Sandhu was not legally represented in relation to his appeal.
Mr Sandhu’s notice of appeal contained three grounds, in the following terms (as drafted):
1.That the Federal Circuit Court Judge made an error of law through application of incorrect principles of law and as a result failed to find that the Administrative Appeals Tribunal (Tribunal) fell into jurisdictional error.
2.That the Federal Circuit Court Judge made an error of law by giving consideration to material submitted by the Respondent which could not be supported by evidence.
3.That the Federal Circuit Court Judge made an error of law by finding that the Tribunal had offered procedural fairness.
Mr Sandhu also relied on an affidavit, filed together with his appeal, which set out some of the procedural history of the matter and, essentially, re-stated his grounds of appeal. Mr Sandhu did not file any written submissions.
Mr Sandhu’s appeal grounds and affidavit were, at best, unhelpful. Ground 1 did not identify the error of law said to have been made by the primary judge, nor did it identify the incorrect principles of law that were said to have led the primary judge to reject his case. Ground 22 did not identify the “material” submitted by the Minister which Mr Sandhu apparently contended could not be supported by the evidence. Ground 3 appeared to raise an argument concerning procedural fairness that was not advanced before the primary judge. It also did not explain how the Tribunal supposedly denied him procedural fairness.
Mr Sandhu’s oral submissions were not directed to any of the appeal grounds. He did not identify the alleged error of law, or the alleged incorrect principles of law, referred to in ground 1. Nor did he identify the material that he asserted in ground 3 was not supported by the evidence. He said nothing about being denied procedural fairness by the Tribunal.
What Mr Sandhu did say is that he had worked for in excess of 900 hours at a “shop” or restaurant at the time he applied for the visa. He said that, when he was asked to supply his skills assessment, he went to the shop, only to find that it had since closed. He was, therefore, unable to obtain evidence of his experience as a cook. For that reason, he was unable to obtain a skills assessment from TRA. He said, however, that since 2009, when he applied for the visa, he had continued to work as a cook. He was, therefore, now in a position to obtain a skills assessment if given more time. He said that, when he was asked to provide his skills assessment, he was only asked to provide evidence of the experience he had gained as at 2009. He said that nobody had told him that he could get an assessment based on his later experience, or said that he could have more time to obtain an assessment.
The important point to note about Mr Sandhu’s submissions is that they made it abundantly clear that, as at the time of the Tribunal’s decision, his skills as a cook had not been assessed by TRA. Indeed, they still had not been assessed. His submissions resolved any ambiguity that might exist in relation to his evidence and submissions before both the Tribunal and the primary judge.
MERITS OF THE APPEAL
It is difficult not to have some degree of sympathy for Mr Sandhu. The Department’s handling of his visa application appears to have been rather shoddy at times. It was certainly subject to considerable and unexplained delays. He appears not to have been well-advised by his migration agents. The reasons for the adverse decisions that have been made in relation to his visa application appear not to have been well-explained to him at any stage of the process.
Nevertheless, the fact remains that, at the time the Tribunal made its decision, Mr Sandhu’s skills as a cook had not been assessed by TRA. He therefore did not meet the mandatory criterion in cl 485.221 of the Regulations. The Tribunal was, in those circumstances, correct to affirm the delegate’s decision to refuse to grant the visa to Mr Sandhu.
The Tribunal’s Reasons are brief and, in some respects, a bit ambiguous. It is unclear from the Reasons whether Mr Sandhu’s case before the Tribunal was that he could not obtain a skills assessment from the TRA because he could not get the “paperwork” concerning his experience from either the restaurant or his previous migration agent, or that he had obtained an assessment but could not provide a copy of that assessment because his previous migration agent had it. As has already been noted, it is clear from Mr Sandhu’s submissions before this Court that his case was the former.
While Mr Sandhu’s grounds of review and affidavit in the Circuit Court tended to suggest that he had obtained a skills assessment, but could not obtain a copy of it because his former agent had disappeared, it would seem that his submissions before the primary judge again focussed on his reasons for not being able to obtain a skills assessment. He did not appear to contend that he had an assessment, but was unable to produce it. His case before the primary judge, as in this Court, appeared to be that he had a good explanation for why he was unable to obtain the assessment from the TRA. The primary judge was correct to find, in effect, that Mr Sandhu’s explanations for why he had been unable to obtain a skills assessment did not assist him.
The general thrust of Mr Sandhu’s case before the primary judge was that the Tribunal had failed to consider, or properly consider, his arguments for why he was unable to obtain the skills assessment. While the Tribunal’s Reasons are brief, there is no basis for the contention that the Tribunal did not consider Mr Sandhu’s submissions and arguments. The primary judge was correct to dismiss that contention.
For the reasons essentially already given, the three grounds of appeal included in Mr Sandhu’s notice of appeal have no merit. Mr Sandhu did not demonstrate any appellable error by the primary judge. His submissions were directed to the unfortunate position he now finds himself in and why he should be given more time to obtain a skills assessment. He contended that he could obtain a skills assessment now, if given time. That may be so, but it does not demonstrate any appellable error by the primary judge or any jurisdictional error by the Tribunal.
It should also be noted that, at the commencement of the hearing of his appeal, Mr Sandhu effectively applied for an adjournment of the hearing to allow him to obtain legal representation. That application was opposed by the Minister. The adjournment application was refused. The appeal was set down for hearing some months ago. Mr Sandhu did not give the Minister or the Court any notice of his adjournment application. More significantly, he did not provide any reasonable explanation for why he had not attempted to obtain legal representation at an earlier time.
CONCLUSION AND DISPOSITION
Mr Sandhu failed to demonstrate any error on the part of the primary judge or, for that matter, the Tribunal. The primary judge was correct to dismiss Mr Sandhu’s application. It follows that his appeal must be dismissed.
Mr Sandhu did not provide any persuasive reasons for why, as the unsuccessful party, he should not be ordered to pay the Minister’s costs. Like many appellants in his position, he simply indicated that he did not have the money to pay the Minister’s costs. That is not a good reason not to make a costs order in the Minister’s favour.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney. Associate:
Dated: 18 May 2018
0