Shercan v Minister for Immigration

[2019] FCCA 1032

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHERCAN v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1032

Catchwords:
MIGRATION – Application for temporary graduate visa – failure to provide evidence that applicant’s skills had been assessed by a relevant assessing authority – non-compliance with visa application requirements – no error demonstrated – application dismissed.

Legislation:

Migration Regulation 1994 (Cth), rr.1.151, 2.26B, 485.223

Migration Act 1958 (Cth), ss.476

Cases cited:

Khan v Minister for Immigration and Border Protection [2018] FCAFC 85

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CL 332

Applicant: SOPHIYA SHERCHAN

First Respondent MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 773 of 2018

Judgment of: Judge Egan

Hearing date: 11 April 2019

Date of Last Submission: 11 April 2019

Delivered at: Brisbane

Delivered on: 11 April 2019

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Respondents: Mr Kyranis of Sparke Helmore

IT IS ORDERED THAT:

1. The application for review filed on 30 July 2018 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $5,000.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 773 of 2018

SOPHIYA SHERCHAN

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 7 August 2017, the applicant made application for the grant of a temporary graduate visa. The applicant nominated the occupation of chef but did not include details of any skills or assessment undertaken with any relevant assessing authority at the time of the making of the application. On 29 August 2017, a delegate to the Minister refused to grant the visa on the basis that the applicant did not meet the relevant criteria set out in clause 485.223 of the Migration Regulations 1994 (Cth). Clause 485.223 provides as follows:

   485.223

   When the application was made, it was accompanied by evidence that the applicant had applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority.

2. On 15 September 2017, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the delegate’s decision.  On 27 March 2018, the Tribunal invited the applicant to provide information that demonstrated that she had met all the requirements of clause 485.233 of the Regulations.  On 10 April 2018, the applicant provided a statement and supporting documents in response to the Tribunal’s invitation.

3. On 2 May 2018, the Tribunal invited the applicant to attend a hearing before it on 22 May 2018.  On 22 May 2018, the applicant appeared at the hearing to give evidence and present her arguments.  The applicant provided further documentary evidence to the Tribunal at that hearing.

4. On 6 July 2018, the Tribunal affirmed the decision of the delegate not to grant the applicant the visa. On 30 July 2018, the applicant made application for judicial review of the decision of the Tribunal pursuant to the provisions of s. 476(1) of the Migration Act 1958 (Cth) (‘the Act’).

5. At [6] of its reasons, the Tribunal noted that the question before it was whether the applicant met the relevant criteria for the grant of the visa. At [7] of its reasons, the Tribunal noted that clause 485.223 required that when the visa application was made, it was to be accompanied by evidence that the applicant had applied for an assessment of the applicant’s skills for the nominated “skilled occupation” by a “relevant assessing authority”. Clause 485.223 provided as follows:

   485.223

   When the application was made, it was accompanied by evidence that the applicant had applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority.

6. In [8] of its reasons, the Tribunal noted that “skilled occupation” had the meaning given to it by regulation 1.151 of the Regulations.  It was noted that an occupation is a skilled occupation if it is specified by the Minister in an instrument in writing as a skilled occupation and, further, if a number of points are specified in the instrument as being available and that it is applicable to the person in accordance with the specification of the occupation. 

7. The term “relevant assessing authority” means a person or body specified by the Minister in an instrument under Regulation 2.26B of the Regulations.  At [9] of its reasons, the Tribunal noted that on the evidence before it, the applicant’s nomination of occupation as a chef required assessment by “Trades Recognition Australia” as the relevant assessing authority.

8. At [10] of its reasons, it was noted that the applicant conceded that she had not provided the information as required by part 485 of schedule 2. At [11] of its reasons, the Tribunal found that as the visa application was not accompanied by evidence of an application for a skills assessment for the nominated skilled occupation, and that the applicant therefore did not satisfy the requirements of clause 485.223. The Tribunal affirmed the decision of the delegate.

9. When considering what was meant by the term “accompanied by”, relevant to the subject matter, Tracey J in Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 at [15]-[17] said as follows:

   [15]The clause establishes an objective temporal test. Whether or not there is some flexibility in the test, nothing decided in Anand permits the temporal requirement to import notions of fairness so as to avoid what might otherwise be an apparently harsh outcome for the visa applicant. The test does not turn upon concepts of blameworthiness or deservedness. A visa application is either accompanied by the necessary evidence or it is not.

   [16]The test is objective. Clause 485.223 is one of a number of “time of application” criteria conditioning the grant of a skills visa. An obvious mischief addressed by the provision is to provide clarity to the visa applicant as to the person’s readiness to apply for the visa and the matters he or she needs to have done before he or she commences the visa application process.

   [17]The provision aims to ensure that a person who applies for a visa has applied for his or her skill assessment and is therefore ready and willing to undergo the assessment at the earliest opportunity. If the provision was not enacted in that form, a visa applicant might use the visa application process, including processes associated with merits review by the Tribunal, to expand the time in which he or she acquires the skills necessary to fulfil the substantive visa criterion. In that way, the Regulations facilitate efficient decision-making and guard against delay by visa applicants who are not ready at the time of the visa application to undergo the necessary assessments.

10. The Tribunal was entitled to find, based on the applicant’s own evidence, that she did not satisfy the criteria for the grant of a visa. 

11. It cannot be said that no other rational or logical decision-maker could not have made that same decision.  As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]:

    “130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.  The same applies in the case of an opinion that a mandated state of satisfaction has not been reached.  Not every lapse in logic will give rise to jurisdictional error.  A court should be slow, although not unwilling, to interfere in an appropriate case.”

12. Neither could the decision be considered as legally unreasonable or one lacking an evident and intelligible justification, as such respective concepts were considered in Minister for Immigration and Citizenship v Li (2013) 249 CL 332 at [66] and [76] per Hayne, Kiefel and Bell J where it was said:

    “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    …

    [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

13. No jurisdictional error has been demonstrated on the part of the Tribunal. 

14. The application for review is without merit and is dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 29 April 2019