SHRESTHA v Minister for Immigration
[2014] FCCA 2709
•21 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHRESTHA v MINISTER FOR IMMIGRATION | [2014] FCCA 2709 |
| Catchwords: MIGRATION – Review of decision by delegate of the Minister not to grant a Subclass 175 Skilled Independent visa – whether the delegate had constructive knowledge of the skills assessment the applicant lodged in connection with an application for a different visa – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.54, 54(2), 54(2)(a), 54(2)(b), 54(2)(c), 55, 55(1), 128, 477(1) Migrations Regulations 1994 (Cth), reg.5.02A(2) |
| Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38 Turcan v Minister for Immigration & Multicultural Affairs [2002] FCA 397 |
| Applicant: | BIJENDRA SHRESTHA |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 2859 of 2013 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 23 April 2014 |
| Delivered at: | Sydney |
| Delivered on: | 21 November 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M. Jones of Parish Patience Immigration Lawyers |
| Counsel for the Respondent: | Mr J. Smith |
| Solicitors for the Respondent: | DLA Piper Australia |
ORDERS
The application is dismissed.
The applicant pay the respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2859 of 2013
| BIJENDRA SHRESTHA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction
This application for judicial review raises a short point; and that is whether a delegate of the respondent (Minister), when considering one application for a visa, could be taken to have knowledge of the contents of a document the applicant had provided to the Department for Immigration and Border Protection (Department)[1] in connection with an application for a different visa.
[1] Which at the relevant time was known as the Department of Immigration and Citizenship.
Background
On 30 June 2008 the applicant lodged an application for a Subclass 175 Skilled Independent visa (175 visa). The applicant had to specify in his application a nominated skilled occupation. The skilled occupation the applicant nominated was that of a cook. One of the criteria the applicant had to satisfy to be granted the visa was that “the skills of the applicant have been assessed by the relevant assessing authority as suitable for the applicant’s nominated skilled occupation”.[2]
[2] Cl.175.212(1) of Schedule 2 to the Migrations Regulations 1994 (Cth).
The applicant did not submit with his application any evidence that the relevant assessing authority, Trades Recognition Australia (TRA), had assessed the applicant as suitable for the applicant’s nominated skilled occupation. The applicant, however, had been assessed on 23 June 2008. The applicant stated so in his application for the 175 visa as follows:[3]
[3] CB9
Name of assessing authority Trades Recognition Australia
Date of Skills Assessment 23 JUN 2008
Reference/Receipt number TRA08/062212602
The skills assessment referred to in his application for the 175 visa is one the applicant attached to an application he made on 26 May 2010 for a Subclass 856 visa.[4] The skills assessment is contained in a letter dated 23 June 2008 from the TRA (Skills Assessment) informing the applicant that he had been successful in his assessed occupation of “Cook 4513-11”.[5]
[4] Exhibit A, page 1
[5] Exhibit A, pages 70-71
By letter dated 19 October 2012 the delegate requested the applicant to provide the delegate with a “Skills Assessment for your nominated occupation”.[6] The applicant did not provide the delegate with the Skills Assessment. Nor did the applicant inform the delegate that he had supplied the Skills Assessment to another delegate in connection with an application for an 856 visa.
[6] CB26
By letter dated 15 October 2013 the delegate informed the applicant that his application for a 175 visa had been refused. It was refused because the applicant did not provide evidence that at the time he applied for the 175 visa the applicant’s skills had been assessed as suitable for his nominated skilled occupation.
Applicant’s submissions
The applicant submits that the Skills Assessment he provided with his application for the 856 visa “was constructively before” the Minister in connection with the application for the 175 visa. The applicant relies on the decision of Heerey J in Turcan v Minister for Immigration & Multicultural Affairs.[7]
[7] [2002] FCA 397
One issue before the Court in Turcan was whether the applicant had commenced an application for judicial review of a decision made under s.128 of the Migration Act 1958 (Cth) (Act) within the time permitted by s.477(1) of the Act. That depended on whether the address to which the notice of the decision made under s.128 of the Act was sent was the address of the applicant “last known to the Minister” within the meaning of reg.5.02A(2) of the Migration Regulations 1994 (Cth) (Regulations).
The address to which the notice was sent was the address the applicant provided to the Department in September 2000 in a statutory declaration he submitted in support of his permanent visa application. In March 2001, however, the applicant, using a prescribed form (Form 377), applied to the Department’s Translating and Interpreting Service for the translation of two documents. By the time the applicant completed that form, he had moved from the address stated in his statutory declaration, and the applicant included his new address in the Form 377. The question the Court had to determine was which of the two addresses the applicant provided to the Department was “last known to the Minister” within the meaning of reg.5.02A(2).
Heerey J held that the address specified in Form 377 was the address last known to the Minister. His Honour so held because Form 377 was an official Departmental document which in part contemplated information, including a name and address, being provided by a person in their capacity as a visa holder; the information provided by the Form 377 was in permanent form; and the information was capable of being stored in a way that would enable easy retrieval by reference to the name of the visa holder “should an appropriate system be put in place”.[8]
[8] [2002] FCA 397 at [31]
In short, the applicant submits that because the client identification number the Department had assigned to the applicant’s 175 visa application was the same as that which the Department had assigned to the applicant’s 856 visa, the delegate had constructive knowledge of the Skills Assessment the applicant provided to the Department in connection with his 856 visa application. Perhaps the applicant should also be taken to have submitted that the Department had in place an appropriate system that would have enabled the delegate, when considering the applicant’s 175 visa application, to identify all documents in the Department’s possession that had been lodged by the applicant and, for that reason, should be taken to have constructive knowledge of the Skills Assessment.
The applicant further submits that the notion of “constructive knowledge” has been recognised in at least two cases. One is Minister for Aboriginal Affairs v Peko-Wallsend Ltd.[9] The issue in that case was whether the relevant Minister was bound to take into account not only the Aboriginal Land Commissioner’s comments on detriment, but any submissions made to the Commissioner that corrected, updated, or elucidated the Commissioner’s comments on detriment. Mason J (as his Honour then was), but no other Justice, was of the view that the Minister in that case, and by implication, any decision-maker, was bound to consider not only relevant information of which he or she has actual knowledge, but also relevant information of which he or she has constructive knowledge.[10]
[9] (1986) 162 CLR 24
[10] (1986) 162 CLR 24 at page 45: “It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading.”
The second case in which the applicant submits the notion of “constructive knowledge” has been recognised is in the reasons for judgment of Rares J in SZOIN v Minister for Immigration and Citizenship.[11] The issue in that case was whether a decision of the Refugee Review Tribunal miscarried because the Secretary of the Department did not pass onto the Tribunal information that became available after the delegate made its decision. The Full Federal Court held the Tribunal’s decision did not miscarry, although Rares J supported that decision for reasons different from those on which Bennett and McKerracher JJ relied. In the course of his Honour’s reasons for judgment, Rares J said:[12]
Had the delegate not made the decision under review before the Minister received the STARTTS report, then he or she would have been obliged to consider it as material of which the Minister (and thus his delegate) had constructive, if not actual, notice. That is because a decision-maker must make his decision on the basis of the most current material available to him or her.
[11] [2011] FCAFC 38
[12] [2011] FCAFC 38 at [84]
Minister’s submissions
The Minister submits the decision in Turcan is not authority for the broad proposition that the Minister (or his delegate), when considering an application for a visa, must be taken to have knowledge of all information supplied to the Department over and above information the applicant may have supplied in connection with an application for a particular visa. The Minister submits that the decision in Turcan turned on the meaning of a particular regulation that has no relevance to the facts of this case. Whether or not the delegate in this case ought to be treated as having knowledge of the Skills Assessment the applicant lodged in connection with his application for an 856 visa is to be determined by different statutory provisions, and in particular, by s.54 and s.55 of the Act. And, under these provisions, the delegate cannot be treated as having had knowledge of the Skills Assessment.
The Minister further submits that, even if the Act did not restrict the Minister’s obligation to have regard only to information that formed part of a particular application for a visa, there is nothing in the evidence that ought reasonably to have alerted the delegate that the Department had in its possession a Skills Assessment in relation to the applicant.
Did the delegate have knowledge of the Skills Assessment?
Although Mason J and Rares J referred to “constructive knowledge” or “constructive notice” respectively, neither of their Honours discussed the meaning of these terms. It is reasonably clear, however, that each of their Honours intended these expressions, when applied to information, to refer to information which it was the duty of the relevant decision-maker to consider, but did not consider. In other words, the notion of “constructive knowledge” or “constructive notice”, when used in relation to information, means information the decision-maker was bound to consider but did not consider. The question, therefore, I must consider is whether the delegate, in determining the applicant’s 175 visa application, was under a duty to consider the Skills Assessment.
The starting point is the Act, and in particular, s.54 and s.55(1). Section 54 of the Act relevantly provides:
(1)The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.
(2)For the purposes of subsection (1), information is in an application if the information is:
(a)set out in the application; or
(b)in a document attached to the application when it is made; or
(c)given under section 55.
Section 55(1) of the Act provides:
Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.
There are a number of points to note about these provisions. The first is that s.54 of the Act imposes an obligation on the Minister when deciding whether to grant or refuse to grant a visa. That obligation is to have regard to information. Second, the information to which the Minister is obliged to have regard is not at large; it is limited to “all of the information in the application”. The relevant limitation is effected by the prepositional phrase “in the application”. This phrase means that the information to which the Minister must have regard must form part of or relate to something that can properly be characterised as an application for a visa.
Third, paragraphs (a) and (b) of s.54(2) of the Act identify the ways in which information is to be recognised as “information in the application” when an application is made. That is, the information may be set out in the application, or the information may be in a document that is attached to the application when it is made. Paragraph (c) of s.54(2) recognises that information may be “information in the application” in one other way; and that is when the information is provided to the Minister under s.55 of the Act. However, for information that is provided to the Minister under s.55 of the Act to be “information in the application” for a visa, the information must be capable of being recognised as information that relates to an application for a visa.
The last point to note is that it is a necessary implication of s.54 and s.55 of the Act that the Minister, in considering whether to grant or refuse to grant a visa, has no obligation to have regard to information other than “information in the application” that has been provided to the Minister in the manner provided for by s.54 or s.55 of the Act.
Applying these observations to the facts of this case, whether or not the Minister, in considering whether to grant or refuse to grant to the applicant a 175 visa, was obliged to have regard to the Skills Assessment the applicant lodged with the Department in connection with his 856 visa turns on whether the Skills Assessment was “information in the application” for a 175 visa the applicant lodged.
The Skills Assessment was not attached to the applicant’s 175 visa application. Nor was the Skills Assessment set out in the applicant’s 175 visa application. It is true that in his 175 visa application, the applicant referred to the Skills Assessment. But the matter of which the Minister had to be satisfied was not that the applicant had the Skills Assessment, but that the Skills Assessment assessed the applicant to be suitable for his nominated skilled occupation. That the applicant had been so assessed was not set out in the applicant’s 175 visa application. The Skills Assessment, therefore, cannot be considered to be “information in the application” the applicant made for a 175 visa.
Can it be said that the Skills Assessment that was provided to the Minister with the 856 visa application was “information in the application” the applicant lodged for a 175 visa, and hence, provided to the Minister under s.55 of the Act? In my opinion, it cannot. As I have said earlier, for information that is provided to the Minister under s.55 of the Act to be “information in the application” for a visa, the information must be capable of being recognised as information that relates to an application for that visa. There was nothing in the Skills Assessment or in the application for the 856 visa that could reasonably have indicated to the Minister that the Skills Assessment was information in, or that related to, the application the applicant made for a 175 visa.
What of the applicant’s submission that the delegate had knowledge of the applicant’s unique client identification number? Did the delegate, because of this knowledge, have constructive knowledge of the contents of the Skills Assessment the applicant provided in his application for an 856 visa? In my opinion, that question must be answered in the negative. As I say earlier in these reasons, constructive knowledge by a decision-maker of information implies that the decision-maker is under a duty to consider the information. That the Department assigned to the applicant’s 175 visa application the same client identification number the Department assigned to the applicant’s 856 visa did not by itself give rise to any duty by the delegate, when considering whether to grant or refuse to grant the applicant a 175 visa, to search all documents that were linked to the client identification number that had been assigned to the applicant. To imply such a duty would ignore s.54 and s.55 of the Act, and in particular, the necessary implication of those provisions that the Minister, in deciding whether to grant or refuse to grant a visa, has no duty to consider information other than “information in the application”.
It follows that the Skills Assessment, although referred to in the applicant’s 175 visa application, was not “information in the application” for the 175 visa the applicant lodged. The Minister, therefore, was under no obligation to have regard to it when deciding whether to grant or refuse to grant the applicant a 175 visa. Being under no such obligation, the Minister did not have “constructive knowledge” of the contents of the Skills Assessment.
Relevance of Turcan
The decision and reasoning in Turcan, on which the applicant relies, is relevant to the issues raised in this application, but not in a manner that supports the applicant’s case. Turcan illustrates the proposition that whether or not the Minister is deemed to have knowledge of information that has been provided to the Department is not determined by reference to some general principle of agency, or by reference to some other rule of attribution that may be applied to artificial persons such as corporations. It must be determined by reference to some provision of the Act or Regulations that obliges the Minister to consider the information. In Turcan, whether or not the Minister had knowledge of the information in that case was determined by the application of reg.5.02A(2) of the Regulations.
In the case before me, whether or not the Minister had actual or constructive knowledge of the Skills Assessment must be determined by reference to some provision of the Act or Regulations that obliged the Minister to consider that document. The only relevant provisions are s.54 and s.55 of the Act. For the reasons I have already given, those provisions did not oblige the Minister, when deciding to grant or refuse to grant the applicant a 175 visa, to have regard to the Skills Assessment the applicant provided to the Minister with his 856 visa application.
Conclusion and disposition
The delegate, in deciding whether to grant or refuse to grant to the applicant a 175 visa, was under no obligation to consider the Skills Assessment the applicant submitted in support of his application for an 856 visa. For that reason, the delegate did not have constructive knowledge of the Skills Assessment, and did not commit any jurisdictional error by refusing to grant the applicant a 175 visa because the applicant failed to provide to the delegate evidence that, at the time he applied for the 175 visa, the applicant’s skills had been assessed for his nominated skilled occupation.
I propose, therefore, to dismiss the application, and order that the applicant pay the Minister’s costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 21 November 2014
3
4