SHRESTHA v Minister for Immigration

[2018] FCCA 296

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHRESTHA v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 296

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Skilled (Provisional) (Class VC) (Subclass 485) visa – whether the Tribunal afforded the applicant procedural fairness – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994, cl 485.224 of Schedule 2

Applicant: MANITA SHRESTHA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1998 of 2017

Judgment of: Judge Street

Hearing date: 9 February 2018

Date of Last Submission: 9 February 2018

Delivered at: Sydney

Delivered on: 9 February 2018

REPRESENTATION

Solicitors for the Applicant: Mr M Newman
Newman & Associates

Solicitors for the Respondents: Ms K Evans
Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The applicant to pay the first respondent’s costs fixed in the amount of $5,200.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1998 of 2017

MANITA SHRESTHA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision the Administrative Appeals Tribunal (“the Tribunal”) made on 25 May 2017 affirming a decision of the delegate not to grant the applicant a Skilled (Provisional) (Class VC) (Subclass 485) visa. 

2. The applicant who is a citizen of Nepal applied for the Subclass 485 visa on 16 November 2015. The criteria for that Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”).

3. The delegate in the decision dated 18 May 2016 refusing the grant of the visa, made reference to the requirements in relation to the subclass 485 visa. Express reference was made to asking the applicant on 10 February 2016 to provide evidence to show that her skills had been assessed as suitable for the nominated occupation. The applicant was given 28 days to respond.

4. On 23 March, the applicant provided a receipt from Trades Recognition Australia (“TRA”) for review of the skills assessment. The delegate noted at the date of the decision, being 18 May 2016 no skills assessment had been provided. It was in those circumstances that the delegate was not satisfied that the applicant met the requirements of subclause 485.224(1) of Schedule 2 to the Regulations and in turn, clause 485.224 of Schedule 2 to the Regulations in its entirety. 

5. The delegate found, as the applicant did not meet the requirements of a mandatory clause 485.224 of Schedule 2 to the Regulations, the applicant did not meet the requirements for the grant of the 485 skilled graduate visa. The delegate’s decision made clear that the applicant had been asked for and had not provided the relevant TRA skills assessment. 

The Tribunal’s decision 

1. The applicant applied for review on 5 June 2016. By letter dated 15 February 2017, the applicant was invited to attend a hearing on 26 April 2017. The letter expressly referred to an invitation to the applicant:

   Please provide all documents you intend to rely on to establish that you meet the criteria for the visa.

   Attention was drawn to the decision of the delegate as to why the applicant had not been granted a visa.

2. The applicant attended the hearing on 26 April 2017 to give evidence and present arguments. At that hearing, the Tribunal provided the applicant with a further opportunity to provide information in respect of the TRA skills assessment on or before 15 May 2017. A reminder email was sent to the applicant on 11 May 2017 in respect of having until 15 May 2017 to provide a TRA skills assessment to the applicant’s representative.

3. On 15 May 2017, the applicant’s representative identified that the skills assessment was four to six weeks away and requested the Tribunal to allow the applicant at least four weeks’ time so that in four weeks the applicant’s representative could then report back to the Tribunal and update. 

4. On 19 May 2017, the applicant’s representative wrote to the Tribunal and identified that it attached a copy of the application for TRA skills assessment. The covering email identified that the application was delayed due to the fee that the TRA were supposed to balance with the earlier payment that was yet to be finalised, how the applicant had volunteered to pay the new fees and a receipt was attached. The email identified that the applicant’s representative would update the Tribunal in relation to how it was going. Attached to the email was a payment receipt dated 19 May 2017, as well as a letter dated 9 November 2016 which referred to the documents that had been submitted by the applicant and identified that there had been an outcome letter sent on 26 May 2016. 

5. The documents provided also included the TRA Migration Skills Assessment Application Form. That form identified the visa being applied for and had filled in 189, 489 and 190. The form specifically identified that the Migration Skills Assessment program is not for a 457 or 485 visa.

6. It was in these circumstances that the Tribunal wrote to the applicant’s representative on 24 May 2017 and drew attention to the fact that the information provided on 22 May 2017 shows that the subclass 485 assessment was assessed by the TRA and an outcome reached on 26 May 2016. The letter identified that in those circumstances the Tribunal would be proceeding to make a decision on the case. The Tribunal noted that the Migration Skills Assessment application lodged with the TRA on 19 May 2017 is for subclass 189, 489 and 190 so that it is not relevant to the case. The letter noted there did not appear to be any subclass 485 skills assessment application with TRA and that the Member will not be waiting for the outcome of the MSA application. 

7. It was in those circumstances that the Tribunal on 25 May 2017 delivered reasons in which the Tribunal referred to the background to the application for review and the appearance of the applicant before the Tribunal. 

8. The Tribunal identified the requirements for the visa and that on the material before the Tribunal, the applicant nominated the occupation of Chef, which is a specified skilled occupation and that for that occupation the relevant assessing authority is the TRA.

9. The Tribunal turned to the question of whether or not the applicant had been assessed as suitable for the nominated occupation in accordance with cl 485.224(1) of Schedule 2 to the Regulations. The Tribunal identified that during the hearing the applicant said that the TRA rejected her application that she made in October 2015, and that she had lodged a new one on 13 March 2017. It was in those circumstances the Tribunal agreed to allow the applicant until 15 May 2017 for the outcome to be submitted. 

10. The Tribunal referred to the communication received on 15 May 2017, being an email from a representative that the skills assessment was four to six weeks away and requested additional time for skills assessment.  The applicant was asked to provide evidence of the current application to TRA and any previous outcomes.

11. The material provided indicated that the applicant had made an application for a skills assessment by TRA on 4 March 2016 and that an outcome was reached on 20 May 2016. The letter from the TRA dated 9 November 2016 was noted by the Tribunal as saying that her documents for a provisional skills assessment were being returned because “your application has already been assessed and an outcome reached.” The Tribunal noted that no evidence of an application lodged on 13 March 2017 as was told to the Tribunal had been provided.

12. The Tribunal referred to the copy of the assessment application lodged on 19 May 2017, indicating that it was an application for subclass 189, 489 and 190. The Tribunal expressly noted that the form specifically stated that it is not for a 457 or 485 visa and that accordingly the Tribunal found the application that had been made is not relevant to the case. 

13. The Tribunal then observed that despite the applicant saying at the hearing that she had applied for another assessment from TRA in March 2017, there did not appear to be any subclass 485 skills assessment application with TRA. It was in those circumstances the Tribunal noted that it informed the applicant would be proceeding to make a decision.

14. The Tribunal found that there was no evidence that the applicant had been assessed during the last three years by a relevant assessing authority as suitable for the nominated skilled occupation of chef.

15. Accordingly, the Tribunal found the requirements of cl 485.224 of Schedule 2 to the Regulations are not met and affirmed the decision under review. 

Before this Court

1. The ground in the application is as follows:

   1. On 19 May 2016, between the date of hearing and the date of decision, the applicant (chef) submitted to the Tribunal evidence of a.full skills assessment request made to the TRA (as she was lawfully entitled to do) and asked for the Tribunal's decision to be deferred pending the outcome. The Tribunal proceeded to decision without allowing assessment to be undertaken on the mistaken assumption that TRA would refuse to make such an assessment for a temporary visa holder as the applicant is and was In so doing the Tribunal did not afford procedural fairness to the Applicant. 

2. Mr Newman, the solicitor for the applicant, drew the Court’s attention to the content of the opening title of the form used to apply for the visa “Application for Temporary Graduate or Skilled Regional Visa” and in particular, the reference to a skilled regional visa in the heading, which Mr Newman identified was a different visa, a 489 visa. 

3. Mr Newman identified that in circumstances where the applicant provided information identifying that she had completed a number of cooking courses in accordance with material that she had provided, this was a case where the Tribunal’s discretion miscarried by the failure to adjourn the proceedings and to provide the applicant with a further opportunity to obtain the relevant 485 visa assessment by the TRA.

4. Mr Newman argued that there was no discussion of the overlap with the skilled regional visa 489. Whilst the Tribunal had provided reasons, Mr Newman argued that the exercise of the discretion in the present case was legally unreasonable.

5. Mr Newman contended that the grounds referred all fell within the ground identified in the application. The ground itself refers to an alleged mistaken assumption that the TRA would refuse to make an assessment. The exercise of the Tribunal’s decision was not made on any mistaken assumption. The discretion was exercised for the reasons identified by the Tribunal in circumstances where the applicant had told the Tribunal something about what she had lodged, which was not in any way supported when given the opportunity to do so, and in circumstances where the further documents provided did not identify any appropriate assessment request in respect of the relevant visa.

6. The Tribunal had identified the background to the matter including the outcome before the delegate. The Tribunal provided an intelligible justification for the exercise of the discretion in the circumstances of the present case. There was no legal unreasonableness in the exercise of the discretion given the history identified by the Tribunal and the opportunities the applicant had already been given.  

7. The Tribunal’s decision to proceed to determine the matter was in the circumstances, reasonable and open to the Tribunal. Whilst Mr Newman was correct to point out the overlap in the description referring to the skill regional visa and the 489 visa, Mr Newman candidly acknowledged that the form itself however, referred to having no application to a 485 visa, and that the application for review referred to the 485 visa. 

8. Despite the skilful arguments of Mr Newman taking the Court to the qualifications of the applicant, it was a matter for the Tribunal to determine whether to proceed to make a determination. In the circumstances identified by the Tribunal, there was no denial of procedural fairness or miscarriage of the discretion of the Tribunal in determining to proceed to determine the matter. No jurisdictional error as alleged in ground 1 is made out. 

9. Accordingly, the application is dismissed. 

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  16 March 2018