Shrestha v Minister for Home Affairs
[2019] FCCA 870
•4 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHRESTHA & ANOR v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 870 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Temporary Graduate (Subclass 485) visa – whether the Tribunal failed to properly construct cl 485.223 of the Migration Regulations 1994 – whether the Tribunal failed to take into account relevant information – whether the Tribunal made a decision that was unreasonable and irrational – application dismissed. |
| Legislation: Migration Regulations 1994, cl.485.223 |
| Cases cited: Anand v Minister for Immigration & Citizenship [2013] FCA 1050 Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 Nguyen v The Minister for Immigration & Anor [2016] FCCA 1523 |
| First Applicant: | SUGAT SHRESTHA |
| Second Applicant: | SWARNA GIRI SHRESTHA |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3604 of 2018 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 4 April 2019 |
| Date of Last Submission: | 4 April 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 4 April 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr Gao, Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $5000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 3604 of 2018
| SUGAT SHRESTHA |
First Applicant
| SWARNA GIRI SHRESTHA |
Second Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is a judgement in the matter of Sugat Shrestha and Another v Minister for Home Affairs and Another.
The applicant and his wife are citizens of Nepal.
On 4 January 2018, the applicants applied for Temporary Graduate (Graduate Work) (subclass 485) visas (‘Visa’) with Mr Shrestha as the primary applicant and his wife as a dependant applicant. The applicant listed his occupation as an accountant.
The Visa application was submitted by his migration agent. The migration agent answered “no” to the question:
Have you applied to a relevant assessing authority for an assessment of your skills for your nominated occupation?
On 5 February 2018, the delegate refused the application on the basis that the applicant had failed to provide evidence that he had applied for a skills assessment at the time of his application and thus failing to satisfy cl 485.223 of schedule 2 of the Migration Regulations 1994 (‘the Regulations’).
On 20 February 2018, the applicant sought review in the Administrative Appeals Tribunal (‘the Tribunal’).
In a letter accompanying the application, the applicant stated that due to his migration agent’s negligence, the visa was applied for without the relevant work skills assessment. The applicant also provided a letter from Chartered Accountants Australia and New Zealand which assessed his qualifications as suitable for the nominated application and skill of accountant.
At the Tribunal hearing on 7 November 2018, the applicant provided a letter from the migration agent admitting errors in applying for visas on behalf of the applicants. In my view, the applicant has been very poorly served by his migration agent and the advice the applicant has received in terms of pursuing appeals to the Tribunal and this Court has been very poor. That is a matter that concerns me. However, I have to apply the law here. I am not in a situation whereby I can turn around and deal with the negligence of the applicant’s migration agent.
The Tribunal Decision
In a decision dated 22 November 2018, the Tribunal set out the relevant history of the matter. The Tribunal acknowledged the errors admitted by the applicant’s migration agent. The Tribunal acknowledged the unfortunate history of the matter in terms of the negligence of the migration agent but it concluded it had no discretion to waive the requirements of cl 485.223 of the Regulations.
The Tribunal noted that the applicant had only supplied evidence of a skills assessment approximately one month after lodging the application. Accordingly, the application was not accompanied by evidence of an application for a skills assessment at the time of the visa application. Thus, the criteria for Subclass 458 visa were not satisfied.
Accordingly, the Tribunal affirmed the decision to refuse a visa.
The Court has been provided with a number of documents. They include the Court book but most relevantly, the Tribunal decision, the grounds of appeal and the submissions of the respondent.
The Grounds of Appeal
In the applicant’s grounds of appeal, the applicant suggested jurisdictional error by the Tribunal including that the Tribunal failed to consider in all of the circumstances, given the admitted errors of the migration agent, that the temporal requirements under cl 485.223 of the Regulations were suspended.
Secondly, it was suggested that the Tribunal failed to consider relevant information that being the skills assessment dated 13 February 2018, from Chartered Accountants Australia and New Zealand. The respondent Minister relied upon the decision of Nguyen v The Minister for Immigration & Anor,[1] noting there must be a close temporal connection for the evidence to accompany the application.
[1] Nguyen v The Minister for Immigration & Anor[1][2016] FCCA 1523.
Lastly, it was suggested that the decision was unreasonable and irrational in that the applicant’s migration agent, who submitted the application on behalf of the applicants, ticked “No” to the issue of a skills assessment but the online system then allowed the application to progress. This was notwithstanding the fact that it was doomed to failure because the relevant information had not been provided.
Consideration of the Grounds of Appeal
The Court cannot engage in merits review. It must deal with the matter on the basis of the law. The application for judicial review, to my mind, is misconstrued. The advice that the applicant has received that he should pursue an appeal in this Court, again, is negligent.
The operation of cl 485.223 of the Regulations was considered by the Full Federal Court consisting of Tracey, Charlesworth and Derrington JJ in Khan v Minister for Immigration and Border Protection[2] (“Khan”). The facts in that case were very similar to that of the applicant in this case.
[2] Khan v Minister for Immigration and Border Protection[2] [2018] FCAFC 85.
The applicant in Khan applied for a visa. The application was not accompanied by proof that the applicant had applied for a skills assessment. In that case, the application was made on 15 March 2016 and the skills assessment was not provided until mid-May 2016. An appeal to the Tribunal was unsuccessful.
In this Court, it was argued very similarly that the Tribunal had erred by failing to take account of the, by then, favourable skills assessment and as a result the Tribunal failed to consider a relevant consideration and that the overall consideration was unreasonable or irrational.
At paragraphs 15 and 17 of Khan, the Full Federal Court found that cl 485.223 of the Regulations establishes an objective temporal test. Either the application is accompanied by the necessary evidence or it is not:
Nothing decided in Anand[3] 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.
[3]Anand v Minister for Immigration & Citizenship [2013] FCA 1050
The Court went on to discuss the various reasons why there may be a strict temporal requirement. It noted that:
The Tribunal did not have any discretion as to whether or not to apply the criterion in cl 485.223 to the appellant. Whether or not the visa application is accompanied by the necessary evidence may involve an evaluation of the evidence, but it does not involve the exercise of a discretion of the kind that would attract the principles in Li.
It went on to say at paragraph 21:
The Tribunal correctly construed clause 485.223 and correctly applied the provision of the facts before it. Having done so, there was no evidence that the appellant could provide so as to satisfy the Tribunal that “the time of application” criteria had been fulfilled. Evidence that he had subsequently applied for a skills assessment and subsequently obtained a favourable assessment could not assist him. The appellant’s complaint that the Tribunal exercised its power unreasonably amounted to a complaint that the law operated harshly in the circumstances of the case.
And then:
Even assuming that the law operated harshly in the appellant’s circumstances, it does not assist the appellant to establish jurisdictional error.
As I indicated, Khan appears to be on exactly the same footing as the matter that the Court is considering here today. I am bound by the reasoning of the Full Federal Court. Once it is accepted that the delegate and the Tribunal correctly construed and applied cl 485.223 of the Regulations, there can be only one outcome of the appeal, that is, that the appeal must be dismissed. All of the grounds of appeal, once that occurs, fall away.
In dismissing the appeal, I am concerned that the applicant has been very poorly advised. It may have been open to him at any time to withdraw the application and submit a new application with all of the required evidence. That application would then have been considered on the basis of its merits, rather than a situation whereby it was simply refused because a procedural requirement had not been complied with.
For certainty, however, I will deal with each of the appellant’s grounds of appeal.
As to ground 1, it must fail, as the Tribunal applied the correct construction of cl 485.223 of the Regulations.
Ground 2 must fail, as there cannot be any suspension of the temporal requirement due to the negligence of the migration agent or indeed any other reason. The evidence must be supplied “at the time of the application” as set out in the case of Khan at paragraph 21.
As to ground 3, I am satisfied that the Tribunal did consider the skills assessment of 13 February, but it could not take that skills assessment into account for the reasons I have indicated above.
The suggestion that the decision was either unreasonable or irrational is refuted by the decision in Khan. It may be, as is suggested, that the online system is confusing, irrational and should have told the applicant that the material that was required for a successful application was not present. However, that is not a matter that I can take into account. I can also not take into account that the application of the law produces what might be considered to be a harsh and unfair outcome.
Accordingly, the application is dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Date: 12 April 2019
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