Shafiuzzaman v MIAC
[2011] FMCA 874
•15 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SHAFIUZZAMAN v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 874 |
| MIGRATION – Review of decision of the Migration Review Tribunal – skilled occupation visa – meaning of “closely related” – “incorrect answers” provided on visa application form – request for impermissible merits review – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.105, 476, 499 Migration Regulations 1994 (Cth), regs.1.03, 1.15F, 1.15I, Sch.1, Sch.2, Sch.6B Acts Interpretation Act 1901 (Cth), s.15AA Migration Amendment Regulations 2007 (No.7) SLI 2007 No. 257 (Cth) |
| Re Drake and Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634 Mark Aronson, Bruce Dyer, Matthew Groves, Judicial Review of Administrative Action – Fourth Edition, Lawbook Co., Thomson Reuters, Sydney, 2009 |
| Applicant: | MD SHAFIUZZAMAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1571 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 4 October 2011 |
| Date of Last Submission: | 4 October 2011 |
| Delivered at: | Sydney |
| Delivered on: | 15 November 2011 |
REPRESENTATION
| Appearing for the Applicant: | Mr C Guan |
| Solicitors for the Applicant: | Paul Guan and Associates |
| Appearing for the Respondents: | Mr M Alderton |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 25 July 2011, and amended on 6 September 2011, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1571 of 2011
| MD SHAFIUZZAMAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 25 July 2011, and amended on 6 September 2011, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 5 July 2011, which affirmed the decision of a delegate of the respondent Minister not to grant a Skilled (Provisional) (Class VC) visa to the applicant.
The applicant applied for this class of visa on 5 June 2008 (Court Book – “CB” – CB 1 to CB 25 with attachments).
Background
With reference to the relevant scheme set out generally in the Migration Regulations 1994 (Cth) (“the Regulations”), the class of visa for which application was made is designed to permit graduates of certain educational institutions in Australia and who, during the time of obtaining their qualifications, were persons who held certain temporary (skilled) visas, to further temporarily reside in Australia for the purpose of obtaining certain skills and qualifications relevant to General Skilled Migration “permanent” visas (see for example, subclass 800 of Sch.2 to the Regulations).
The regulatory scheme relevant to the central issue in this case is to be found in Pt.485 of Sch.2 to the Regulations, and in particular cl.485.213, which is in the following terms:
“The following requirements are met:
(a) the applicant satisfied the Australian study requirement in the period of 6 months ending immediately before the day on which the application was made;
(b) each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant's nominated skilled occupation.”
In short, this required the applicant to satisfy the relevant
decision-maker that he met the two year study requirement in the six months before he applied for this visa, and that each of the qualifications obtained and relied upon was “closely related” to the applicant’s nominated “skilled occupation”.
Regulation 1.03 provides that “skilled occupation” has the meaning given by reg.1.15I:
“Skilled occupation
(1) A skilled occupation , in relation to a person, means an occupation of a kind:
(a) that is specified by the Minister in an instrument in writing to be a skilled occupation; and
(b) if a number of points are specified in the instrument as being available -- for which the number of points are available; and
(c) that is applicable to the person in accordance with the specification of the occupation.
(2) Without limiting subregulation (1), the Minister may specify in the instrument any matter in relation to an occupation, or to a class of persons to which the instrument relates, including:
(a) that an occupation is a skilled occupation for a class of persons;
(b) that an occupation is a skilled occupation for a person who is nominated by a State or Territory government agency.”
Regulation 1.03 also provides that “2 year study requirement” (as referred to in the applicant’s submissions at [7]) has the meaning given to it by reg.1.15F.
The Delegate
The delegate found that the applicant had nominated “Baker” as his skilled occupation. Further, that the applicant provided a skills assessment as a “Pastry Cook”. The delegate was not satisfied that the applicant’s qualification that he had submitted (Diploma of Information Technology (Network Engineering) (“the IT qualification”)) was “closely related” to his nominated occupation as required by cl.485.213. The application was therefore refused (CB 55 to CB 58).
The Tribunal
The applicant applied for review by the Tribunal on 25 October 2010. He was represented by a migration agent who also appears to be the solicitor on the record in the current matter (CB 63).
The applicant’s representative made written submissions on 29 June 2011 (CB 77 to CB 80), which seemed to anticipate an adverse decision from the Tribunal. For example, at points 14 and 15 of the written submissions (at CB 80):
“14. But I wish to point it out notwithstanding that the judicial decisions support the proposition that the Tribunal may depart from the government policy only if the Tribunal can set out ‘the policy document is not in accordance with the migration regulations’ or ‘is not consistent with, or does not accurately reflect the regulation’.
15. In the case that the Tribunal has decided to depart from the policy, we expect the Tribunal to give the reasons on how or why ‘the policy document is not in accordance with the migration regulations’ or ‘is not consistent with, or does not accurately reflect the regulation’.”
The applicant and his advisor attended a hearing before the Tribunal the next day (CB 81). The Tribunal’s account is set out in its decision record ([18] to [21] at CB 93). Following the hearing, the applicant sent to the Tribunal (through his representative) a completed “Notification of incorrect answer(s)” form: “Form 1023” (a Department of Immigration and Citizenship form) (CB 84 to CB 86).
The applicant sought to notify the Tribunal that the information he had provided for his nominated occupation as “Baker” was incorrect, and that the correct relevant “detail” was “Pastry Cook” (CB 86).
Before the Tribunal the applicant and his representative pressed at least two points. First, that the applicant had made a “mistake” in nominating the occupation of “Baker” in his visa application ([19] at CB 93). He should have nominated the occupation of “Pastry Chef”, this being the occupation for which he had obtained, and provided, a skills assessment. Second, that the applicant’s IT qualification was, in any event, “closely related” to either of the occupations of “Baker” or “Pastry Cook”.
The Tribunal found that:
1)The applicant’s nominated occupation in the visa application was “Baker”, and that this was a skilled occupation for the purposes of the Regulations and the occupation against which the qualifications submitted needed to be assessed.
2)The applicant had provided two qualifications (the IT qualification and Certificate III in Food Processing (Retail Baking) Cake and Pastry), neither of which on its own satisfied the requirement (in reg.1.15F) that the applicant complete one or more of his qualifications: “… in a total of at least 16 calendar months”.
3)This meant that, to satisfy the requirement, regard must be had to both qualifications. That is, in relying also on the IT qualification to meet this requirement (reg.1.15F and cl.485.213(a)), the IT qualification must be “closely related” to the applicant’s skilled occupation (cl.485.213(b)).
4)The Tribunal found that the IT qualification was not “closely related” to the nominated occupation of “Baker”, or for that matter to “Pastry Cook”. The applicant therefore failed to satisfy cl.485.213(b), a prescribed criterion for the grant of the visa ([38] at CB 96).
The Tribunal affirmed the delegate’s decision on this basis. In its consideration the Tribunal also had regard to the applicant’s submission that he had made a “mistake” in nominating “Baker”, and that he had intended to nominate “Pastry Cook” as his skilled occupation.
The Tribunal noted the applicant’s lodgement of Form 1023. The Tribunal formed the view that: “… it does not appear to be possible for an applicant to change his nominated skilled occupation during the processing of the visa application.” ([42] at CB 97.) The Tribunal set out its reasoning in this regard ([42] to [45] at CB 98).
The Tribunal found that while: “… Form 1023 is available for applicants to notify of incorrect answers…” in the visa application form, the applicant had not provided “incorrect answers”. The Tribunal found there was no legislative mechanism to allow a change in the nominated occupation in these circumstances ([44] at CB 98).
Before the Court
The amended application before the Court pleads four grounds, with particulars:
“1. Clause 485.213(b) of Schedule 2 to the Migration Regulations (‘the Regulations’) contains a term ‘closely related’ that is so uncertain to apply in migration decision-making that the respondents’ decision made having regard to this term cannot be valid.
…
Further, or in the alternative,
2. The MRT, in determining the closeness of the relationship between the Applicant’s nominated occupation and one of his completed courses, incorrectly applied the statutory test under 485.213(b) of Schedule 2 to the Migration Regulations (‘the Regulations’).
…
3. The MRT misinterpreted the statutory requirements contained s 105 of the Migration Act (‘the Act’) by finding that ‘errors’ were not ‘incorrect answers’ under that section.
…
4. The MRT misinterpreted the statutory requirements contained in Item 1229 of Schedule 1 to the Regulations by incorrectly finding that one of such requirements excluded the Applicant’s rights to supply corrected answers under s 105 of the Act.
…”.
At the hearing before the Court Mr C Guan appeared for the applicant. It appears that he also assisted the applicant before the Tribunal. Mr M Alderton appeared for the first respondent.
The Submissions
What was immediately apparent in the applicant’s submissions (both written and oral) was that the applicant has essentially misunderstood the nature of these proceedings. Much of the applicant’s arguments related to matters already put to the Tribunal, and more properly fell within the province of the Tribunal’s fact finding obligations in the review of the merits of the delegate’s decision. Further, in his submissions the applicant made reference to various authorities that actually support the approach taken by the Tribunal. For example, the written submissions say (in relation to ground one) (at pages 4 and 5):
“20. This Honourable Court has upheld this approach by the Tribunal in a number of cases, such as Pasula v MIAC & Anor [2010] FMCA 219, Chawdhury v MIAC & Anor [2010] FMCA 275, and Kabir v MIAC & Anor [2010] FMCA 577. The applicant notes that in those cases the Court refused to intervene in the Tribunal’s merits review process, which is rightly so. The current application seeks to challenge one aspect of the framework within which the Tribunal conducts its merits review, namely, the statutory term ‘closely related’ and whether it could be validly applied in migration decision-making with sufficient consistency.”
[Emphasis added.]
No real attempt was made to distinguish these authorities (see further below).
Ground One
Ground one (with particulars) asserts that the Tribunal fell into jurisdictional error because, in finding that the applicant’s IT qualification was not “closely related” to the nominated skilled occupation, the Tribunal applied a test that was inconsistent with policy instructions, and what was described as: “the normal decision making practice” of the first respondent’s delegates.
The thrust of the oral submissions before the Court was to argue that there is uncertainty as to the meaning of the term “closely related” as it is explained in the Minister’s departmental “Procedures Advice Manual” (the current and relevant version is “PAM3”).
As best as the argument could be understood, it conceded that PAM3 is “not binding” on the Tribunal, however it proceeded on the assertion that there is a difference between what is relevantly set out in PAM3 and in the Regulations, and that many “thousands” of other cases have been decided by delegates in favour of applicants by accepting the “different” test set out in PAM3, as opposed to that set out in the Regulations. This situation is said to create “uncertainty”.
The “clause” (by which I understood to be the relevant part of the Regulation: cl.485.213(b)) was therefore “improperly” applied by the Tribunal in these circumstances, because it left the applicant’s case to “the mercy” of the Tribunal.
The argument appears to have been put in reliance on that part of PAM3 as set out at CB 77 and referred to at that relevant part of the advisor’s submissions to the Tribunal: item 3 at CB 77 to CB 78 “STUDY & NOMINATED OCCUPATION MUST BE CLOSELY RELATED”. The relevant part of the PAM3 was not otherwise put before the Court.
The applicant’s submission was that the Minister’s delegates, in following PAM3, have adopted a particular test to assess the relationship between the nominated skill occupation and the qualification submitted. The test is said to be one of whether the qualification is “complementary” and “useful” to “the nominated occupation”. The Tribunal erred, therefore, because it did not apply this test, but in its reasoning applied a test inconsistent with the policy and/or contrary to that applied by many of the Minister’s delegates.
There are many deficiencies in the applicant’s argument which betrays the difference between the advisor’s migration agent perspective and his standing as a lawyer.
It is the case that it is appropriate that in general, and in relevant circumstances, a Tribunal should have regard to such policy statements as that in PAM3, central to the applicant’s case now. Further, a failure to apply such policy statements inconsistently is not desirable because, as Brennan J emphasised in Re Drake and Minister for Immigration & Ethnic Affairs (No.2) (1979) 2 ALD 634 (“Re Drake”) at 639, to do otherwise: “… brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice.”
However, the applicant’s attack now is not based on some inconsistency in the application of policy as such, but rather it is said that inconsistency arises where the application of the Regulations is done in a way that is inconsistent with the policy and with the practice of many of the Minister’s delegates, leading to the “invalidity” of the decision made.
As to the latter, the applicant has put no evidence before the Court to support the assertion that “thousands” of delegates have applied the policy in a particular way. Nor is it open to the Court to take judicial note of any such action, given that such decisions are not in the public domain. The Court has no knowledge of what “thousands of delegates” have done in relation to this visa category and their approach to what is meant by “closely related”.
In any event, even if such evidence were to have been put before the Court, it would not have assisted the applicant. The applicant (or more accurately his solicitor) appears to have misunderstood that the Tribunal is bound to follow and apply the law as expressed in the relevant statute and Regulations, and not necessarily any departmental policy guidelines that may be in conflict with it.
In the current case it is clear that there is a conflict between the language of the relevant regulation and the Tribunal’s understanding of that language, and the expression of policy as set out in PAM3.
This is not the first time that this Court has found that the stated “policy” in PAM3 is repugnant to the relevant regulation (see, for example, He v Minister for Immigration & Anor [2009] FMCA 1142; (2009) 112 ALD 635 at [47]).
If it is the case that “thousands” of delegates have, in effect, ignored the clear language of the Regulations and applied instead a different test as derived from PAM3, then this is a serious matter which raises questions of maladministration in the Minister’s portfolio. As such, if that is the underlying basis for the applicant’s complaint then the issue should have been directed to the Immigration Ombudsman, whose powers are directly focussed on such questions.
It is the case that a “policy” (not expressed as, or in, a regulation or statute) is not binding on a decision-maker such as the Tribunal. However a policy applicable to a case is a relevant consideration (Nikac v Minister for Immigration, Local Government and Ethnic Affairs [1988] FCA 400; (1988) 20 FCR 65; (1988) 92 ALR 167; (1988) 16 ALD 611 at [81] per Wilcox J, Re Drake at 643 per Brennan J and Hneidi v Minister for Immigration & Citizenship [2009] FCA 983 at [37]).
The central difficulty for the applicant in the current case is that the Tribunal did not ignore the policy statement set out in PAM3. In that sense, it cannot be said therefore to have fallen into error by failing to take into account a relevant consideration.
The applicant now seeks to re-agitate before the Court the very argument he put to the Tribunal. Namely, that the test which should be applied is that set out in PAM3 (“policy”) (“complementary or useful to the occupation”) and, by implication, not that set out in the relevant regulation (“closely related”) ([21] at CB 93 and CB 80). The Tribunal considered and rejected this submission ([27] at CB 94 to [31] at CB 95). It gave reasons for its findings which were reasonably open to it on what was before it.
The reasoning adopted by the Tribunal to distinguish between the policy and the test in the relevant regulation was reasoning endorsed by the Federal Court in Uddin v Minister for Immigration and Citizenship [2010] FCA 1281 (“Uddin”) at [10] – [12] per North J (special leave to appeal by Mr Uddin was refused by French CJ and Crennan J in Uddin v Minister for Immigration and Citizenship [2011] HCASL 43).The Court rejected the applicant’s argument (in that case) that the Tribunal misunderstood the term “closely related” by departing from what was set out in PAM3. The Tribunal in that case found that the language of the regulation required a closer relationship than that suggested by the words “complementary” or “useful”.
So too the current Tribunal. The Tribunal’s finding that the relevant regulation required: “…a much more narrow connection between the academic qualifications and the occupation than being merely useful” ([28] at CB 94) is entirely consistent with Uddin.
As Mr Alderton submitted, a failure to have regard to PAM3, or to apply what is relevantly in it where the Tribunal finds it is inconsistent with the relevant regulation, does not reveal jurisdictional error (El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038 at [45]).
It is the case that PAM3 is a departmental document. It is not binding on the Tribunal. Nor was there any evidence put before the Court to indicate that it is the subject of a direction pursuant to s.499 of the Act. In this sense, as Smith FM found in Pasula v Minister for Immigration & Anor [2010] FMCA 219 (“Pasula”) ([22] – [23]), the Tribunal is not obliged to take the PAM3 into account, in the sense of it being a relevant consideration.
What the applicant has failed to appreciate is that, as between a regulation and a policy, any inconsistency is to be resolved with reference to the plain language of the relevant regulation.
It is not entirely clear what the applicant hoped to achieve by pressing this ground. His submissions make it clear that the Court has “upheld” the approach taken by the Tribunal in a number of cases (see Pasula,Chawdhury v Minister for Immigration & Anor [2010] FMCA 275 (“Chawdhury”) and Kabir v Minister for Immigration & Anor [2010] FMCA 132 (“Kabir”)). The applicant submits that it was “right” of the Court not to intervene in the Tribunal’s merits review process, so it could not have been for the purpose of arguing that these judgments were plainly wrong and should not be followed. To avoid any doubt, in my respectful view none of these cases were plainly wrong. In fact, on any plain reading and application of established legal propositions, they were plainly correct.
What is left of the applicant’s case, therefore, is simply that the failure to follow the PAM3 led to inconsistency in decision making.
Yet another difficulty for the applicant is that for such an argument to succeed, it must derive, at least in part, from some ambiguity or uncertainty as to the language of the Regulations. The applicant does not actually propose any such vice in the relevant regulation, simply that its otherwise clear language is inconsistent with the policy. In these circumstances, as the Minister submits, no jurisdictional error is revealed in what the Tribunal has done. I cannot see any uncertainty in the terms of cl.485.213(b), nor in the way it was understood and applied by the Tribunal. Ground one, in all the circumstances, is without merit.
Ground Two
It was not clear whether ground two was put forward as being in the alternative to what was put in ground one, or simply as an extension of the argument in that ground.
In any event, and having regard to written submissions which provided a level of coherence not matched by oral submissions, at best it appears the assertion of legal error is that the Tribunal misapplied the statutory test of “closely related” in its assessment of ascertaining the degree of relationship between the applicant’s IT qualification and his nominated occupation.
In essence, the argument is that the Tribunal should have taken into account the applicant’s perspective as to whether the IT qualification was “closely related” to the occupation. I understood this to be an assertion that the test to be applied was a subjective test emanating from the applicant’s assertions before the Tribunal, and not some objective test from the Tribunal’s perspective. That is, imposed by the Tribunal (at its “mercy”).
As the Minister submitted, there is clear authority contrary to the applicant’s assertion. The argument put forward now was considered, in similar circumstances, in Chawdhury (see at [12] per Raphael FM) and followed in Kabir (see at [65] – [69] per Lucev FM).
From both judgments it is clear that the applicants argued for a “subjective” test. That is, a test applying the applicant’s own view of the proximity of the qualifications and the nominated occupation, rather than the Tribunal applying an “objective” assessment taking into account other relevant factors (see Chawdhury at [12] and Kabir at, particularly, [69]).
The applicant now seeks to distinguish these cases from the current case on the basis, as he said, that in these “… cases the Court mainly dealt with and upheld the manner of the Tribunal’s fact finding, and had not considered, or formulated, an applicable test…” (applicant’s written submissions at [27]).
In both cases the Court was faced with an argument similar, if not identical, to the one proposed now. Far from being obiter or “passing comments” (as the applicant now asserts), the “reluctance” (as the applicant now describes it) of their Honours to impart a “subjective element” into the test of “closely related” was squarely part of the ratio in finding against the applicant’s respective relevant grounds in each case.
The applicant’s submission is that on the basis of judicial comity, I not follow these cases. This is said to be because their Honours observations were obiter, must be rejected. They were plainly not obiter. Nor can it be said that they were plainly wrong, and should not be followed on that basis. The applicant did not expressly raise that argument, but to the extent that it may be implied from what follows it must be rejected. In my respectful view their Honours were not plainly wrong, they were in fact plainly correct.
The applicant argues that the language of cl.485.213(b) itself imposes a “subjective element”. This is said to be because the nominated skilled occupation referred to in this provision is “the applicant’s” nominated skilled occupation.
I do not agree with the applicant’s construction. The applicant argues that the relevant wording (emphasising the words “the applicant’s”) indicates a positive act of the applicant’s own choosing, and therefore flowing from this, that the subjective element of the applicant’s perspective should be taken into account when considering whether the qualification is “closely related” to the occupation.
The relevant regulatory scheme certainly envisages that the relevant occupation is that nominated by the applicant. However, even if it is accepted that the applicant has elected to nominate a particular occupation it does not follow, simply by this alone, that the relevant regulation sought to impose a subjective test on the words “closely related”. The applicant’s election, or “choosing”, is plainly directed to the nominated occupation, not to whether his qualifications are “closely related” to it.
Before the Court the applicant never explained, beyond mere assertion, how a subjective element is imposed and flows into the relevant test from such an election. Nor did he explain how it was that the test only has a subjective element.
In this regard, I respectfully agree with Raphael FM that such an inclusion of such a subject element would appear to be inconsistent with the scheme of the Act (at [12], see also Kabir at [69]).
The applicant, to the contrary, also argues that such construction (as he proposes) would promote the purpose or the object underlying the Act (with reference to s.15AA of the Acts Interpretation Act 1901 (Cth)).
The applicant made reference in submissions to the Explanatory Statement issued by the Minister in relation to the Migration Amendment Regulations 2007 (No. 7) SLI 2007 No. 257 (Cth), which introduced amendments to the General Skilled Migration categories of visas, of which the visa the applicant had applied for was a part.
That particular part of the regulatory scheme was said to be “designed” to allow temporary stay in Australia for those students from overseas who had completed studies, but needed more time to gain skills such as to be able to apply for a “permanent” General Skilled Migration visa.
The applicant submitted that the skilled permanent visas (eg subclasses 225 and 886), included a requirement that the successful applicant have certain skills to enable him or her to be able to settle and find employment in Australia (see generally Sch.6B of the Regulations).
Even if it is accepted that this somewhat selective presentation of the Explanatory Memorandum represented the underlying scheme of the introduction of the current version of cl.485.213, the applicant did not explain how his preferred interpretation of “closely related” was supported by this scheme. Nor how the Tribunal’s decision was contrary to the “legislative intention” as explained in the Explanatory Statement.
The Explanatory Statement is silent as to any “subjective test”, or indeed as to any test, relevant to the current consideration. As it states, the Explanatory Statement seeks to explain the need for the changes to the regulatory scheme and, relevantly and in particular, to “create clear pathways for holders of temporary GSM visa” (such as the applicant) “to pursue GSM”, that is, to be able to seek permanent skilled visas (see at page 2 of 5).
Just because the intention was to create a “clear pathway” does not imply any guarantee of a visa being granted (as is implicit in the “logic” of the applicant’s argument). Nor, importantly, does it create any imposition or expectation of a “subjective test” to be preferred to an objective assessment by the relevant decision-maker (in this case the Tribunal).
Ultimately, the test as to “closely related” to be applied by the Tribunal on the current case is the test endorsed in Uddin. The “subjective test” proposed by the applicant now was that the term “closely related” should be read as being that as propounded by the applicant before the Tribunal. Namely that it was “complementary” or “useful” to his nominated occupation. The Explanatory Statement does not support such an approach. Nor does the authority of Uddin. The Tribunal was plainly correct to follow Federal Court authority.
The applicant’s complaint that the Tribunal “disregarded” the applicant’s, and his advisor’s, submissions must also be rejected. The Tribunal plainly took those submissions into account (see [27] (at CB 94) – [33] (at CB 95) and particularly [34] (at CB 95 to CB 96)). If the applicant’s complaint now is that the Tribunal did not accept or agree with his submissions, any such complaint falls over the line into a challenge to the Tribunal’s findings of fact and therefore seeks impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481 (“Wu Shan Liang”)). As set out in relation to ground one, the Tribunal made findings open to it on what was before it, and for which it gave reasons. No error is revealed. Ground two is not made out.
Ground Three
Ground three asserts that the Tribunal misinterpreted s.105 of the Act, in finding that “errors” were not “incorrect answers” for the purposes that section.
Section 105 of the Act is in the following terms:
“Particulars of incorrect answers to be given
(1) If a non-citizen becomes aware that:
(a) an answer given or provided in his or her application form; or
(b) an answer given in his or her passenger card; or
(c) information given by him or her under section 104 about the form or card; or
(d) a response given by him or her under section 107;
was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.
(2) Subsection (1) applies despite the grant of any visa.”
The applicant asserts the Tribunal found that the applicant’s nomination of “Baker” as his skilled occupation was an “error”, and found that “Form 1023” would not assist the applicant because it was intended for the rectification of “incorrect answers”.
The applicant’s submissions are that the Tribunal was in error in considering that “incorrect answers”, in the context of s.105 of the Act, are restricted only to misleading or fraudulent information. The complaint is that the Tribunal’s interpretation was incorrect in excluding matters, such as “honest mistakes”, from the operation of s.105 of the Act.
There are two complete answers to the applicant’s ground as it is explained in submissions.
First, even if there had been some error in the Tribunal’s understanding and application of s.105 of the Act (which, for reason set out below I do not accept) I would decline to grant the relief sought by the applicant.
The relief sought by the applicant is discretionary (Judicial Review of Administrative Action[1] at [12.155] – [12.175]). (See also Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372, Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389 at [33] per Gleeson CJ, Re Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 1; (2003) 211 CLR 441; (2003) 195 ALR 1 at [90] per Gaudron and Kirby JJ and SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162 at [80] per McHugh J.)
[1] Mark Aronson, Bruce Dyer, Matthew Groves, Judicial Review of Administrative Action – Fourth Edition, Lawbook Co., Thomson Reuters, Sydney, 2009.
This ground asserts error in the way the Tribunal has understood and applied s.105 of the Act. The thrust of the complaint is that the applicant should have been allowed to notify the change of his nominated occupation from that of “Baker” to “Pastry Cook”, the occupation for which he had obtained a skills assessment.
The difficulty for the applicant however, is that the Tribunal made clear findings that, in addition to the IT qualification not being “closely related” to the nominated occupation of “Baker”, it was not in any event “closely related” to the occupation of “Pastry Cook” (see [35], [37] and [38] at CB 96).
Given that I can find no error in the Tribunal’s understanding and application of the term “closely related”, even if there were some error in relation to its understanding of s.105 of the Act, it would therefore serve no useful purpose to send this matter back to the Tribunal.
In light of its findings on the question of “closely related”, which were open to it, the Tribunal would on that basis affirm the delegate’s decision.
Second, and in any event, I cannot see legal error in how the Tribunal approached the issue of s.105 of the Act. The applicant has either misunderstood the Tribunal’s actual reasoning and findings in this regard, or chosen to deliberately misrepresent them.
Contrary to the applicant’s assertion now, the Tribunal did not find that the applicant’s “entry” in the visa application form of “Baker” as the nominated occupation was an error. Quite the contrary, the Tribunal found that it was not an “… unintentional mistake by the applicant” ([40] at CB 97) and that he “… did intend to nominate the occupation of a baker and only later… he decided to change it to another occupation.” ([44] at CB 98.)
Nor, again contrary to the applicant’s submission now, did the Tribunal find that “errors” were not “incorrect answers”, or even that s.105 of the Act was not available to correct an “incorrect” answer.
The applicant’s misrepresentation of the Tribunal’s relevant reasoning appears to be for the convenience of re-agitating before the Court his explanation, given to the Tribunal by the applicant’s representative, that the applicant had nominated “Baker” instead of “Pastry Cook” in mistake, or because he did not understand the difference between the two.
The difficulty for the applicant now is that the only evidence relevantly available to the Court is the Tribunal’s decision record. When regard is had to the relevant evidence given by the applicant and his agent to the Tribunal at the hearing, it does not now assist the applicant’s case (see relevantly at [19] at CB 93, [40] and [41] at CB 97). This was to the effect that the applicant had made a mistake in his nomination of “Baker”. The Tribunal considered this evidence and submission, and rejected it. It did not accept that the applicant had made any error or given any “incorrect answer” that required correction, or could be corrected, by the facility available in s.105 of the Act. The Tribunal found he had changed his mind, and that in this circumstance, s.105 of the Act was not available to the applicant.
The applicant’s ground and his submissions now, in view of this, do not rise above an attack on the facts as found by the Tribunal. The applicant seeks impermissible merits review (Wu Shan Liang).
The Tribunal’s findings were based on an understanding of the scope of s.105 of the Act as, for example, set out in Patel v Minister for Immigration & Anor [2011] FMCA 399 at [101] – [109]. The Tribunal’s relevant findings were findings of fact reasonably open to it on what was before it. Ground three is not made out.
Ground Four
Ground four asserts that the Tribunal misinterpreted the statutory requirements contained in Item 1229 of Sch.1. to the Regulations. This was said to be because the Tribunal incorrectly found that this Item excluded the applicant’s right to supply “corrected answers” pursuant to s.105 of the Act.
Here again, as the Minister correctly submits, the applicant has mischaracterised, or rather has actually misrepresented, the Tribunal’s reasoning and findings. The Tribunal did not find, as is asserted, that an applicant could not “correct” an incorrect answer. It made no finding that Item 1229 excluded any “right” the applicant may have had to supply “corrected answers” under s.105 of the Act.
What the Tribunal did find was that in the circumstances of the applicant’s case there was nothing to correct. There is nothing in the Tribunal’s reasoning to even suggest that, had there been something to correct, the applicant would have been prevented from doing so by Item 1229.
Again this ground, and the submission in support, in the face of the Tribunal’s plain reasoning and findings, can only be described as a poor construct which does not rise above a request for impermissible merits review (Wu Shan Liang). Ground four is not only not made out, but I cannot see, in the circumstances of the applicant’s mischaracterisation of the Tribunal’s reasoning, that it had any prospect of success.
Conclusion
With the benefit of legal advice, the applicant has pressed four grounds asserting jurisdictional error on the part of the Tribunal. None are made out. I will make an order dismissing the application.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 15 November 2011
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