Shaikh v Minister for Immigration
[2019] FCCA 3054
•28 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHAIKH v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3054 |
| Catchwords: MIGRATION – Skilled Independent (Class VB, subclass 885) Visa – review of decision of the Administrative Appeals Tribunal – section 375A Certificate stating disclosure of documents contrary to public interest – failure to disclose documents did not result in any practical injustice – no jurisdictional error revealed. |
| Legislation: Migration Act 1958 (Cth), ss.92-96, 375A, 476(1) |
| Cases cited: CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 |
| Applicant: | ANISHBANOO MUSTAQUE SHAIKH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2798 of 2016 |
| Judgment of: | Judge C E Kirton QC |
| Hearing date: | 21 May 2018 |
| Date of Last Submission: | 21 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 28 October 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr Cunynghame of Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2798 of 2016
| ANISHBANOO MUSTAQUE SHAIKH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a citizen of India and on 7 November 2008 completed the requirements for the award of a Master of Accounting from the Central Queensland University. The Applicant completed this qualification after two years of full time study as an international full fee paying student at the Melbourne campus of the Central Queensland University[1].
[1] Court Book (CB) 21.
On 5 November 2011 the Applicant applied for a Skilled Independent (Class VB, subclass 885) visa (Visa)[2].
[2] CB 5-20.
On 10 December 2015 the delegate of the First Respondent (Delegate) refused the application for the Visa (Delegate’s Decision) on the basis that the Applicant did not satisfy cl 885.221 of the Migration Regulations 1994 (Cth) (Regulations)[3].
[3] CB 117-144.
Tribunal Proceedings
On 14 December 2015 the Applicant applied to the Administrative Appeals Tribunal (Tribunal) for a review of the Delegate’s Decision[4]. On 4 October 2016 the Tribunal invited the Applicant to attend a hearing before it and on 8 November 2016 the Applicant appeared before the Tribunal to give evidence and present arguments[5].
[4] CB 145-146.
[5] CB 161-163.
On 19 December 2016 the Tribunal affirmed the Delegate’s Decision (Tribunal Decision)[6].
[6] CB 167-178.
Federal Circuit Court Proceeding
By an application filed on 21 December 2016 (Application) the Applicant seeks judicial review of the Tribunal Decision. The proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (Act).
By Orders made on 21 June 2017 and 17 April 2018 the Applicant was Ordered to file and serve any amended application, affidavits and written submissions upon which she relied 28 days prior to the hearing. The Applicant did not file any further documents and therefore she relied upon her Application and her Affidavit that were originally filed on 21 December 2016. The Affidavit merely appended a copy of the Tribunal Decision together with correspondence from the Tribunal forwarding the Tribunal Decision to the Applicant and her migration agent.
At the hearing of this matter the Court asked the Applicant whether there was anything further that she wanted to say in relation to each of the three grounds of application[7]. The Applicant complained about the length of time that it had taken the First Respondent’s Department to process her application for the Visa and also complained about not being able to obtain employment in Australia. The Applicant otherwise did not make any submission relevant to identifying jurisdictional error in the Tribunal Decision.
[7] Transcript T2:19-4:30.
Legislative Framework
To satisfy the primary criteria at the time of application for the grant of the Visa the Applicant was required to satisfy cl.885.221 of the Regulations. Clause 885.221 required that the Applicant have a “qualifying score” when assessed under Subdivision B of Division 3 of Part 2 of the Act. That subdivision provides in ss.92-96 of the Act for the application of a points system under which an applicant for a relevant visa, is given an assessed score based on the prescribed number of points for particular attributes, which is then assessed against the relevant pool and pass marks.
Pursuant to s. 94(1) of the Act, an applicant is taken to have received the “qualifying score” if their assessed score is more than or equal to the applicable pass mark. In this case, the applicable pass mark for the Visa at the time of the Delegate’s Decision and the Tribunal’s Decision was 120 points[8].
[8] Legislative Instrument IMMI 12/017.
Pursuant to r.2.26AA of the Regulations the prescribed points for each of the prescribed attributes satisfied by the Applicant, and the manner of their allocation, were provided in Schedule B of the Regulations. For the purposes of the Visa application, Part 6B.3 of Schedule 6B of the Regulations provided that 25 points could be awarded if the applicant had “proficient English” (defined by r.1.15D of the Regulations) or 15 points if the applicant was found to have “vocational English” (defined by r.1.15B of the Regulations).
Consideration
Ground 1
The first ground stated in the Application is:
The Tribunal failed to take account of relevant considerations in determining whether the applicant meets the requirements for the grant of a Skilled (residence) (Class VB) visa.
The Tribunal recorded that the issue before it was whether the Applicant satisfied cl.885.221 of the Regulations. The Applicant nominated “Accountant” as her skilled occupation. Schedule 6B to the Regulations sets out the qualifications and points for applications made before 1 July 2011 which the Tribunal was required to consider the Applicant against. Whilst the Applicant applied for the Visa after 1 July 2011, she was required to be considered against Schedule 6B because she was in a class of persons to whom r.2.26AA applies[9].
[9] Tribunal Decision at [11], CB 169-170.
The Tribunal also recorded that as the application was lodged after 1 July 2011 but before 1 January 2013, the Applicant was also required to be assessed against schedule 6C of the Regulations, as the Applicant was in a class of persons to whom r.2.26AB applies. Schedule 6C applies for applications made on or after 1 July 2011 and sets out the qualifications and points which the Tribunal was required to consider the Applicant against. For these purposes the relevant class of persons is specified in Legislative Instrument IMMI 12/068[10].
[10] Ibid., at [12], CB 170 and at [56], CB 174.
The Tribunal found that the Applicant achieved a score of 115 under Schedule 6B[11]. It was therefore found that the Applicant did not achieve the qualifying score of 120 to pass the qualifying points test under Schedule 6B[12]. The Tribunal found it would not consider the Applicant’s International English Language Testing System (IELTS) test result undertaken after the date of the Visa application for the purpose of Schedule 6B.3 (English Language Qualifications)[13]. The Tribunal found that the Applicant’s IELTS scores achieved on 24 September 2011 were sufficient to meet the definition of ‘competent English’ in r.1.15C, but were insufficient to meet the definition of ‘proficient English’ in r.1.15D[14].
[11] Ibid., at [14]-[52], CB 170-174.
[12] Ibid., at [53]-[55], CB 174.
[13] Ibid., at [23], CB 171.
[14] Ibid., at [21], CB 171.
The Tribunal found that the Applicant achieved a score of 60 under Schedule 6C[15]. It was therefore found that the Applicant did not achieve the qualifying score of 65 to pass the points test under Schedule 6C[16].
[15] Ibid., at [58]-[83], CB 174-177.
[16] Ibid., at [85]-[86], CB 177.
The Tribunal came to a different conclusion to that of the Delegate in relation to Schedule 6C.3 (Overseas Employment Experience Qualifications). The Tribunal found the Applicant to be a:
[…] credible and sincere witness who was able to give a detailed explanation of why she did not have bank records, payslips or tax returns to corroborate her reference letters for her Indian employment[17].
[17] Ibid., at [61], CB 175.
The Tribunal accepted the Applicant’s evidence that she had been employed in India as an accountant and calculated that she had undertaken 77 months of relevant employment experience in India between 1 March 2000 to 30 April 2002 and 1 June 2002 to 28 February 2005.[18] However the Tribunal found it could only take into account overseas employment undertaken in the 10 years prior to the date of the application for the Visa, back to 4 November 2001 (pursuant to Schedule 6C of the Regulations). This reduced the Applicant’s allowable overseas employment experience for the purposes of Schedule 6C.3 to a total of 59 months. The Tribunal allocated the Applicant five points and noted that 10 points could be awarded for at least 60 months of relevant overseas employment experience[19].
[18] Ibid., at [62], CB 175.
[19] Ibid., at [61]-[63], CB 175.
In conclusion the Tribunal found that the Applicant failed to achieve the qualifying score required to pass the points test in Schedule 6B and Schedule 6C. Therefore the Applicant did not meet cl. 885.221 of the Regulations, which was a prescribed criterion for the grant of the Visa. As there was no other subclass for the Applicant to be considered against, the Tribunal affirmed the Delegate’s Decision.
In the first ground the Applicant has not articulated what relevant considerations the Tribunal failed to take into account in determining whether the Applicant met the requirements for the Visa. The Tribunal Decision demonstrates that the Tribunal considered the Applicant’s claims and evidence in relation to the Schedule 6B and the Schedule 6C points test. The Applicant’s dissatisfaction with the findings of the Tribunal does not equate to a failure on the part of the Tribunal to consider the Applicant’s claims and otherwise amounts to a request for impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 272. The Tribunal’s finding that the Applicant did not achieve the requisite score was open to it on the material before it for the reasons the Tribunal gave and no jurisdictional error is revealed. The first ground therefore fails.
Ground 2
The second ground in the Application is:
The Tribunal failed to properly assessed the applicant’s points in order to satisfy the requirements (sic).
This ground is not particularised to assert how the Tribunal failed to properly assess the Applicant’s “points”. Further at the hearing the Applicant provided no further particulars in relation to this claim when the Court invited her to do so.
I refer to the discussion in paragraphs 13 to 20. The Tribunal’s finding that the Applicant did not achieve the requisite score was open to it on the material before it for the reasons the Tribunal gave and no jurisdictional error is revealed.
Further, the second ground is merely an unparticularised assertion of jurisdictional error. Failure to particularise a ground of review is sufficient basis for it to be dismissed: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612, at [60] and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760, at [35]; CNN15 v Minister for Immigration and Border Protection [2017] FCA 579, at [21]; MZARG v Minister for Immigration and Border Protection [2018] FCA 624, at [25].
The second ground therefore fails.
Ground 3
The third ground of the Application is:
The Tribunal failed to calculate the applicant’s qualifying score correctly because it failed to award points for the applicant’s work experiences.
This ground is not particularised to assert how the Tribunal failed to properly assess the Applicant’s “qualifying score”. Further at the hearing the Applicant provided no further particulars in relation to this claim when the Court invited her to do so.
In relation to the Applicant’s work experience, the Tribunal accepted the Applicant’s evidence that she had completed a professional year in Australia as an accountant and awarded her 10 points under Schedule 6B.5(2) (as opposed to being employed in the Applicant’s nominated skilled occupation as an accountant pursuant to Schedule 6B.5(1))[20].
[20] Tribunal Decision at [28]-[30], CB 171.
In relation to the Applicant’s overseas employment experience qualifications (Schedule 6C.3 of the Regulations), the First Respondent (Minister) submitted that the Tribunal miscalculated the Applicant’s relevant experience. The Tribunal found that the Applicant’s allowable employment experience in India was 59 months[21]. It was submitted by the Minister that where the Tribunal accepted that the Applicant undertook relevant employment experience in India between:
a) 1 March 2000 to 30 April 2002; and
b) 1 June 2002 to 28 February 2005;
and it could only take into account experience from 4 November 2001 to 4 November 2011, pursuant to Schedule 6C.3 of the Regulations[22], the Tribunal ought to have found that the Applicant’s allowable employment experience in India was 39 months[23].
[21] Ibid., at [62], CB 175.
[22] Ibid., at [61]-[62], CB 175.
[23] Minister’s Written Submissions, filed 7.5.18, at [24].
It was further submitted by the Minister that this error was not material to the Tribunal’s decision, as in the circumstances the Tribunal was required to award the Applicant the same number of points had the Applicant completed 39 or 59 months of relevant overseas employment experience under schedule 6C.3(2) of the Regulations. Further, an error of fact based on a misunderstanding of evidence of this nature in considering an Applicant’s claim is not a jurisdictional error[24]. I accept these submissions.
[24] Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303, at [28]; Chen v Minister for Immigration and Citizenship [2011] FCAFC 56, at [51].
I otherwise refer to the discussion in paragraphs 13 to 20. The Tribunal’s finding that the Applicant did not achieve the requisite score was open to it on the material before it for the reasons the Tribunal gave and no jurisdictional error is revealed.
Again this ground is not particularised to assert how the Tribunal failed to properly award points for the Applicant’s “work experiences”. I refer to the discussion in paragraph 24.
The third ground therefore fails.
Section 375A Certificate
A Certificate was issued by a delegate of the Minister under s.375A of the Act on 1 April 2014 (Certificate)[25]. In Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 (Singh) the Full Court of the Federal Court held that procedural fairness required the Tribunal to disclose the existence of a Certificate issued (or purportedly issued) by the delegate of the Minister under s.375A of the Act to the review applicant.
[25] CB 151.
The Certificate has been annexed to the affidavit of a solicitor for the Minister, Adam Cunynghame[26]. The documents the subject of the certificate were placed in a sealed envelope.
[26] Affidavit of Adam Cunynghame, affirmed 3.5.18, filed 7.5.18, Annexure “A”.
The Certificate stated that the disclosure otherwise than to the Tribunal of matters contained in folios 90A to 91B, 93A to 93B and 115A of department file BCC2011/522180 would be contrary to public interest. The Certificate further stated that the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than to a member of the Tribunal as constituted for the purpose of the review[27]. The Certificate covers:
a)“[…] Internal DIBP processes which is not in the public interest to be disclosed internally”; and
b)Documents identifying “[…] a third party by name who has not provided consent for their identity to be disclosed to the visa applicant and there is a reasonable fear of retribution to a third party if the information was disclosed”[28].
[27] CB 151.
[28] CB 151.
The Minister conceded that the Certificate was invalid for the reasons given by Beach J in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 (MZAFZ). It was also submitted by the Minister that it did not appear that the Tribunal put to the Applicant the existence of the Certificate or the material that it covered.
The Minister has waived privilege over the documents referred to in the Certificate and provided copies to the Applicant[29]. That material has been provided to the Court as Exhibit R1. I note that I admitted those documents without objection from the Applicant[30].
[29] Transcript T7:13-16.
[30] Ibid., T7:27-8:11.
It was submitted on behalf of the Minister that no jurisdictional error arises as a consequence of the Certificate having been issued and that the decisions of Singh and MZAFZ are distinguishable in this case. This was because there was no basis upon which it could be held that the Tribunal had ‘acted on’ the Certificate. It was submitted that to say a decision-maker has had regard to or acted on a document is to say that the decision-maker has treated the document as material in some way to the decision on review: CQZ15v Minister for Immigration and Border Protection [2017] FCAFC 194, at [65] (per Kenny, Tracey and Griffiths JJ).
I note that in Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197, the Full Court adverted to the fact that there had been numerous cases in which Judges of this Court received evidence and examined such documents (as those here) and had gone on to hold that the failure to disclosure the existence of a notification did not give rise to denial of procedural fairness[31]. The Court noted[32] the cases concerned turned on their own facts. The Full Court observed:
“It will, perhaps, be an unusual case in which the reviewing court will be satisfied that the material in the documents, although relevant, can have had no bearing on the outcome of the Tribunal’s decision. Nevertheless the possibility that such cases may exist may not be foreclosed. It is more likely that such material may be relevant if the reviewing court is invited to withhold relief on discretionary grounds”[33].
[31] Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197, at [73].
[32] Ibid., at [76].
[33] Ibid., at [79].
The Certificate covers information relevant to whether the Applicant worked at “PC Gandhi Consultant” and “Good Luck Garments Pvt Ltd”. The Tribunal accepted the Applicant’s evidence that she worked at these places of employment[34]. The Tribunal said:
[34] Tribunal Decision at [7], CB168-169 and [60]-[62], CB 175.
The tribunal has reached a different conclusion to the delegate, based on the fact that it has had the opportunity to review the information before the Department but also to take detailed evidence from the applicant at hearing. The Tribunal found the applicant a credible and sincere witness who was able to give a detailed explanation of why she did not have bank records, payslips or tax returns to corroborate her reference letters for her Indian employment. It is therefore satisfied that she undertook the following employment experience in India in her nominated skilled occupation of Accountant:
PG Gandhi Consultants from 1 March 2000 to 30 April 2002; and
Good Luck Garments PV from 1 June 2002 to 28 February 2005[35].
[35] Ibid., at [61], CB 175.
I determine that the documents covered by the Certificate could not have led to a more favourable outcome for the Applicant. Given the nature and content of the documents the subject of the Certificate, together with the absence of any reference to the Certificate in the Tribunal’s reasons, I conclude that the Tribunal did not consider the documents to be material to the review. I therefore determine that the Tribunal did not act on the Certificate.
I find that the failure to disclose the Certificate and the documents did not result in any practical injustice to the Applicant, given the Tribunal’s favourable finding in relation to her employment in India. I further find that no error is revealed by the Tribunal’s omission to refer to the Certificate.
Conclusion
The Tribunal Decision is not vitiated by jurisdictional error.
The Application will be dismissed with the Minister’s costs fixed in the sum of $5,500.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge C E Kirton QC
Associate:
Date: 28 October 2019
0
10
4