Shrestha v MHA - [2019] FCA 1843

FEDERAL COURT OF AUSTRALIA
Shrestha v Minister for Home Affairs [2019] FCA 1843

Appeal from: Shrestha & Anor v Minister for Home Affairs & Anor [2019] FCCA 870

File number: NSD 605 of 2019

Judge: MARKOVIC J

Date of judgment: 19 November 2019

Catchwords: MIGRATION – appeal from orders of Federal Circuit Court of Australia dismissing application for review of decision of the Administrative Appeals Tribunal – where appellants had applied for Temporary Graduate (Class VC, subclass 485) visa – where application not accompanied by skills assessment as required by cl 485.223 of Sch 2 to the Migration Regulations 1994 (Cth) due to error of migration agent – whether appellants provided with sufficient notice of Federal Circuit Court hearing – whether primary judge unreasonably refused request to adjourn hearing – whether appellants denied procedural fairness – whether primary judge erred in application of cl 485.223 of the Regulations – appeal dismissed

Legislation: Migration Regulations1994 (Cth) Sch 2, cl 485.223

Cases cited:
CPF15 v Minister for Immigration and Border Protection (2018) FCA 330

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

Date of hearing: 19 November 2019

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 45

Counsel for the Appellants: The Appellants appeared in person

Solicitor for the First Respondent: Mr H Gao of Australian Government Solicitor

Solicitor for the Second Respondent: The Second Respondent filed a submitting notice save as to costs

ORDERS

NSD 605 of 2019

BETWEEN:
SUGAT SHRESTHA

First Appellant

SWARNA GIRI SHRESTHA

Second Appellant

AND:
MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

MARKOVIC J

DATE OF ORDER:

19 NOVEMBER 2019

THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellants pay the first respondent’s costs as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)
MARKOVIC J:

This is an appeal from orders made by the Federal Circuit Court of Australia (Federal Circuit Court) on 4 April 2019 dismissing an application made pursuant to s 476 of the Migration Act 1958 (Cth) seeking review of a decision of the second respondent (Tribunal) not to grant the appellants Skilled (Provisional) (Class VC, subclass 485) visas (Visas).
BACKGROUND
The appellants are husband and wife and citizens of Nepal.
On 4 January 2018 the appellants applied for the Visas in the Graduate Work stream (Application). The first appellant, Mr Shrestha, was the primary applicant and the second appellant was the dependent applicant.
In the Application, Mr Shrestha listed his nominated occupation as “accountant (general)”. On page 1 of the Application, under the heading “Skills Assessment”, the following question appeared:
Have you applied to a relevant assessing authority for an assessment of your skills for your nominated skilled occupation?
The answer recorded against that question was “No”.
At page 15 of the Application,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCA 1843
Decision Date: 19 November 2019

CaseChat Overview and Summary

Shrestha v MHA involved an appeal from the Federal Circuit Court of Australia against the dismissal of an application for review of a decision by the Administrative Appeals Tribunal. The appellants, Shrestha and others, had applied for a Temporary Graduate (Class VC, subclass 485) visa but did not include a skills assessment as mandated by clause 485.223 of Schedule 2 to the Migration Regulations 1994 (Cth) due to an error by their migration agent. The key legal issues before the court were whether the appellants were provided with adequate notice of the Federal Circuit Court hearing, if the primary judge unreasonably refused a request to adjourn the hearing, if the appellants were denied procedural fairness, and if the primary judge erred in applying clause 485.223 of the Regulations. The court found that there was no procedural error in the handling of the hearing date, the refusal to adjourn was not unreasonable given the binding nature of the decision in Khan, and the appellants were not denied procedural fairness. Consequently, the appeal was dismissed, and the appellants were ordered to pay the Minister’s costs.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellants pay the first respondent’s costs as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

While I have a deal of sympathy for the position the appellants find themselves in, at the end of the day the decision in Khan, which was binding on the primary judge and is binding on me, sets out how subcl 485.223 of Sch 2 to the Regulations is to be interpreted. As the Full Court noted, the clause establishes an objective temporal test requiring that the skills application be provided at the time of the application. That is what the primary judge found. There was no error in his Honour’s findings. The appellants have failed to establish any of their grounds of appeal. CONCLUSION For those reasons, the appeal will be dismissed. Because the appellants have been unsuccessful, they should pay the Minister’s costs. I will make orders accordingly.

Ratio Decidendi

Legal Principle Established

Finally, Mr Shrestha submitted that if the skills assessment was such a crucial document, then the Minister’s department’s online system should have notified him of the requirement to provide it with the application, but it did not. Consideration I turn, then, to consider the appellants’ grounds of appeal and the additional submissions made by them. By ground 1 the appellants contend that the hearing before the Federal Circuit Court was brought forward and they were not provided with sufficient notification of the new date. Mr Shrestha made submissions, set out above, in relation to this ground. As is evident from the reasons of the primary judge, Mr Shrestha appeared at the hearing in the Federal Circuit Court. On that basis, there can be no issue that the appellants did not receive notification of the hearing date; clearly, they did. Mr Shrestha accepts that to be so. To the extent that, by this ground, the appellants allege that because the hearing date was brought forward by two weeks they were denied procedural fairness, it cannot succeed. The appellants were ordered to file and serve an amended application and further evidence by 21 March 2019 and their submissions 14 days prior to the date of hearing in the Federal Circuit Court. However, as at the date of the hearing before the primary judge, no such documents had been filed or served on the Minister. In the lead up to the hearing, no steps were taken to attempt to comply with the court’s orders. The hearing was then conducted on 4 April 2019. To the extent that the appellants submitted that they did not have sufficient time to retain a lawyer because of the change in hearing date, I note that there was no evidence of their attempts to retain a new lawyer in the period available either before me or, I infer, before the primary judge. In those circumstances, it cannot be said that the appellants were denied any procedural fairness because of the change in hearing date. Ground 1 should be dismissed. By ground 2 the appellants contend that the primary judge failed to consider their application to adjourn the hearing in order to obtain legal representation. Where an application for an adjournment has been unreasonably refused, a denial of procedural fairness and jurisdictional error may be made out: CPF15 v Minister for Immigration and Border Protection [2018] FCA 330 (CPF15) at [28] and the cases cited therein. Each case will, of course, turn on its own facts: CPF15 at [29]. The Minister accepts that the appellants sought an adjournment to enable them to obtain legal representation, which was opposed by the Minister on the basis that it would be futile to adjourn the matter having regard to the decision in Khan. In his written submissions the Minister noted that, although not referred to in the primary judge’s reasons, at the hearing his Honour considered the appellants’ request for an adjournment, but found that there was no utility in granting an adjournment. I accept the Minister’s submission that it is apparent from the primary judge’s reasons and his consideration of the decision in Khan that any adjournment would be futile. In the circumstances of this case, it could not be said that it was legally unreasonable for the primary judge to refuse the adjournment, having regard to the proper construction of subcl 485.223 of Sch 2 to the Regulations, as explained by the Full Court in Khan. That is, it is clear that, even if an adjournment was granted, it would not have made a material difference to the outcome. In those circumstances, ground 2 cannot succeed.

Appeal from:	Shrestha & Anor v Minister for Home Affairs & Anor [2019] FCCA 870
File number:	NSD 605 of 2019
Judge:	MARKOVIC J
Date of judgment:	19 November 2019
Catchwords:	MIGRATION – appeal from orders of Federal Circuit Court of Australia dismissing application for review of decision of the Administrative Appeals Tribunal – where appellants had applied for Temporary Graduate (Class VC, subclass 485) visa – where application not accompanied by skills assessment as required by cl 485.223 of Sch 2 to the Migration Regulations 1994 (Cth) due to error of migration agent – whether appellants provided with sufficient notice of Federal Circuit Court hearing – whether primary judge unreasonably refused request to adjourn hearing – whether appellants denied procedural fairness – whether primary judge erred in application of cl 485.223 of the Regulations – appeal dismissed
Legislation:	Migration Regulations1994 (Cth) Sch 2, cl 485.223
Cases cited:	CPF15 v Minister for Immigration and Border Protection (2018) FCA 330 Khan v Minister for Immigration and Border Protection [2018] FCAFC 85
Date of hearing:	19 November 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	45
Counsel for the Appellants:	The Appellants appeared in person
Solicitor for the First Respondent:	Mr H Gao of Australian Government Solicitor
Solicitor for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

JUDGE:	MARKOVIC J
DATE OF ORDER:	19 NOVEMBER 2019