Shubha v Minister for Immigration
[2020] FCCA 1935
•16 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHUBHA & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1935 |
| Catchwords: MIGRATION – Application for review of decision of the Administrative Appeals Tribunal (the Tribunal) – grounds unparticularised – whether the Tribunal’s decision was unfair – no legal error revealed in the grounds – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 Migration Regulations 1994 (Cth), reg.1.15F, sch. 1, item 1136, sch. 2, cl.886.211 |
| Cases cited: Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157; (2014) 227 FCR 525 |
| First Applicant: | MEHEDI HASAN SHUBHA |
| Second Applicant: | TAZRIAN HASAN ARIQ |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2361 of 2017 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 7 July 2020 |
| Date of Last Submission: | 7 July 2020 |
| Delivered at: | Sydney |
| Delivered on: | 16 July 2020 |
REPRESENTATION
| Applicant: | In Person |
| Solicitors for the Respondents: | Minter Ellison Lawyers |
| Legal Representative for the Respondents: | Ms J. Strugnell |
ORDERS
The application made on 26 July 2017 is dismissed.
The first applicant pay the first respondent’s costs set in the amount of $5600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2361 of 2017
| MEHEDI HASAN SHUBHA |
First Applicant
| TAZRIAN HASAN ARIQ |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 26 July 2017 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which on 26 June 2017 affirmed the decision of the delegate of the Minister (“the delegate”) to refuse to grant the applicants Skilled (Residence) (Class VB) visas (“the visas”).
In evidence before the Court is a bundle of relevant documents, filed and tendered by the first respondent (“Court Book” – “CB”, “RE1”).
Background
The applicants are citizens of Bangladesh (item 8 at CB 24 and CB 62). The first applicant (“the applicant”) applied for the visa on 9 December 2009 (CB 1 – CB 15). The second applicant is the applicant’s son. The second applicant was added to the visa application as a dependent on 18 September 2013, after his birth a few months earlier (CB 58 – CB 62 and CB 64 – CB 70).
On 20 October 2015 the delegate refused the grant of the visa (CB 99 – CB 103).
On 11 November 2015 the applicants sought review of the delegate’s decision by the Tribunal (CB 123 – CB 124). The applicants, accompanied by their representative, who was a registered migration agent, attended a hearing before the Tribunal on 12 April 2017 (CB 190 – CB 191). The Tribunal affirmed the delegate’s decision on 26 June 2017 (CB 209 – CB 215).
The Tribunal Decision
As set out above, the applicants had applied for a Skilled (Residence) (Class VB) visa. At the relevant time that class of visa had three subclasses: 885, 886 and 887. There is no dispute now that the Tribunal was correct to identify subclass 886 as being relevant to the applicants’ circumstances ([2] at CB 210).
The criteria to be satisfied for the grant of such a visa were set out at Part 886 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). Again there is no dispute now that to be granted the visa the applicant was required to satisfy these criteria.
The Tribunal, correctly, identified that (at [3], CB 210):
“3. The delegate refused to grant the visas because the first named applicant (the applicant) did not satisfy cl.886.211 of Schedule 2 to the Regulations because the applicant's studies totalled 78 weeks which is less than 2 academic years of study and so the applicant did not satisfy the Australian study requirement.”
The Tribunal identified the issue for determination as being whether the applicant satisfied the “Australian study requirement” as set out at cl.886.211 of Schedule 2 to the Regulations.
The Tribunal reasoned that the relevant regulatory scheme required the applicant to meet, at the time of application, one of several alternative sub criteria. The identity of the relevant sub criteria depended on which of the alternative requirements in item 1136 of Schedule 1 to the Regulations the applicant satisfied, so as to be able to make a valid visa application.
The Tribunal found that the applicant satisfied item 1136(4) of Schedule 1 to the Regulations. In that circumstance, the only relevant alternative criterion available to the applicant was that set out at cl.886.211(2) of Schedule 2 to the Regulations. This required the applicant to satisfy the “Australian study requirement” as set out in reg.1.15F of the Regulations.
There was no dispute from the applicant as to this finding. Nor can I see, on the evidence, that there was any legal error in the Tribunal’s relevant analysis.
At the relevant time cl.886.211(2) of Schedule 2 to the Regulations was in the following terms:
886.211
…
(2) The applicant met the requirements of subitem 1136 (4) of Schedule 1, and:
(a) the applicant satisfied the Australian study requirement in the period of 6 months ending immediately before the day on which the application was made; and
(b) each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation.
[Emphasis Added.]
Regulation 1.15F was at the relevant time in the following terms:
REG 1.15F Australian study requirement
(1) A person satisfies the Australian study requirement if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:
(a) that are registered courses; and
(b) that were completed in a total of at least 16 calendar months; and
(c) that were completed as a result of a total of at least 2 academic years study; and
(d) for which all instruction was conducted in English; and
(e) that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.
Note: Academic year is defined in regulation 1.03.
(2) In this regulation:
completed, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.
Note: The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for subregulation (2), before the award is formally conferred.
degree has the meaning given in subregulation 2.26AC(6).
diploma has the meaning given in subregulation 2.26AC(6).
trade qualification has the meaning given in subregulation 2.26AC(6).
The Tribunal found that the applicant satisfied the Australian study requirement in the six months before the date of the visa application ([21] at CB 212). This was based on his qualifications of a Diploma of Accounting and Certificate III in Hospitality (Commercial Cookery). The applicant therefore met cl.886.211(2)(a) ([21] at CB 212 and see [9] – [20] at CB 210 to CB 212).
As set out above, the applicant was also required to satisfy cl.886.211(2)(b). That is, that each of the qualifications was “closely related” to the skilled occupation of “Cook” nominated by the applicant as the occupation on which his application for the visa was based ([22] at CB 213).
In this regard, the Tribunal considered the applicant’s oral evidence ([23] at CB 213), his written submissions ([24] at CB 213), relevant authorities on the meaning of “closely related” ([25] – [26] at CB 213 to CB 214: Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157; (2014) 227 FCR 525, Talha v Minister for Immigration and Border Protection [2015] FCAFC 115; (2015) 235 FCR 100 (“Talha”), Constantino v Minister for Immigration and Border Protection [2013] FCA 1301; (2013) 139 ALD 567), and the ASCO/ANZSCO Code description for the occupation of “Cook” (second dot point at [26], and [28] at CB 214).
The Tribunal found that the Certificate III in Hospitality (Commercial Cookery) was “closely related” to the occupation of “Cook” ([29] at CB 214).
However, the Tribunal found that the qualification of itself did not meet the “Australian study requirement”. This was because it was not completed within the particular timeframe required by reg.1.15F(1)(b), and further was not completed as a result of two years academic study as required by reg.1.15F(1)(c) ([29] at CB 214).
The Tribunal found that the Diploma of Accounting was not “closely related” to the nominated occupation of “Cook” ([30] at CB 214).
The Tribunal reasoned that while the applicant may use some of the skills derived from the Diploma while working as a cook, the relationship between these skills obtained from the qualification: “…must be more than merely complementary, or that the qualification can be used in some aspects of the occupation” (in [31] at CB 215).
In that light, the Tribunal was not satisfied that the applicant’s study for the Diploma was “closely related” to the nominated occupation of “Cook” ([33] at CB 215).
Given these findings, the Tribunal found that the applicant did not satisfy cl.886.211(2)(b) and that the requirements of cl.886.211 were not met ([34] – [35] at CB 215).
The Grounds of the Application to the Court
The originating application contains three unparticularised grounds. They are as follows:
“1. I was granted 485 (Subclass) with the same qualification.
2. I have three different result with the same qualification.
3. The reason I was refused, I do not thing this is the fair judgement to me.”
[Errors in the Original.]
Before the Court
The applicant first appeared before a Registrar of this Court on 21 August 2017 where orders were made, by consent, facilitating the filing of documents. The applicant had the opportunity to file and serve an amended application by 16 October 2017. No amended application has been filed. The first applicant was also appointed as the litigation guardian of the second applicant, his son, born in 2013.
Orders made on 30 April 2020 set the matter down for final hearing on 7 July 2020, and the applicant and first respondent were given the opportunity to file and serve written submissions and a list of authorities 14 days and 7 days, respectively, prior to the hearing. The Minister filed his written submissions on 30 June 2020. No further documents have been filed by the applicant.
At the final hearing the applicant appeared in person. An interpreter in the Bangla language was provided to assist him. It was apparent that the applicant’s command of English was good. He said he wanted to speak in English. Further, that he did not have any difficulty in understanding English. The hearing continued on the basis that he would use the services of the interpreter if, and when, he considered it necessary.
The applicant’s submissions to the Court in essence repeated the assertions in the grounds of the application, albeit with more detail.
That is, that he had been granted a temporary residence visa (Subclass 485) in either 2009 or 2010 based on the same qualifications that he relied upon in making his application for the visa (permanent – Subclass 886), which was the subject of the Tribunal’s decision currently under review.
He was aggrieved that he had been granted the first visa but refused the second when the qualifications were the same. He expected that he would have been granted the visa. He was not told in the nearly six years that the department took to make a decision that his qualifications were not such as to be granted the “second” visa.
Consideration
In that context grounds 1 and 2 assert, in essence, that he should have been granted the 886 visa given that the qualifications on which he relied were the same which had led to his successful application for the earlier 485 visa.
The grounds failed to appreciate or understand that the criteria for the two visas were, at the relevant times, different. In relation to the application for the 886 visa, the Tribunal was required to consider the applicant’s circumstances as against the regulatory requirements for that visa. That is precisely what the Tribunal did.
As also set out above, there is no error in the Tribunal’s reasoning and findings. The Tribunal correctly identified the issue for consideration being whether the applicant satisfied the relevant regulatory requirements for the grant of the visa. The critical question in this analysis was whether the Diploma of Accounting qualification was “closely related” to the occupation of “Cook”.
In this, and as set out above, the Tribunal considered the applicant’s evidence, was guided by relevant authorities, and appropriately had regard to the ASCO/ANZSCO job description of “Cook”.
In its consideration of the applicant’s circumstances the Tribunal properly had regard to the whole of the ANZSCO job description of “Cook” (Talha at [53]).
The Tribunal’s finding that the Diploma of Accounting was not “closely related” to the occupation of “Cook”, and for that matter, the other findings of fact in the Tribunal’s analysis, were all reasonably open to it for the reasons it gave. There is no legal error in the exercise of its jurisdiction.
Ground 3 asserts that the Tribunal’s decision was not fair to the applicant. No particulars are provided in the ground. At best, from the applicant’s submissions to the Court, the “unfairness” appears to be said to arise from the two following matters.
The Tribunal’s purported failure to consider that he had been granted another visa with the same qualifications.
Two, the Tribunal’s decision was unfair given the time taken by the Minister’s department to make a decision, and the failure to notify him at an earlier time that his qualifications were not such as to meet the requirements of the 886 visa.
As to the first, as set out above, the fact that the applicant had been granted a different visa earlier was not relevant to the regulatory task set for the Tribunal. There is nothing in the relevant regulatory criteria for the grant of the 886 visa that requires the Tribunal to grant that visa if an applicant has been granted another visa based on the same qualifications. Nor that the Tribunal is required to even consider such a matter.
As to the second, it is unfortunate that the Minister’s department took so long to determine the application for the 886 visa. But that cannot, in the relevant statutory and regulatory context, as set out above, reveal jurisdictional error in what the Tribunal has done.
As to the claimed lack of an earlier notification of the difference between the requirements for the two visas, it was always open to the applicant to have sought advice, or to have properly ascertained for himself, the relevant requirements for the 886 visa for which he had applied.
There was no obligation on the Minister’s department to have provided him with any preliminary advice. Nor is there anything to show that he was misled by any officer of the Minister’s department.
In any event, none of this, in the circumstances, can assist the applicant now. Whatever delay may have occurred before the Minister’s department, whatever the situation as to the claimed lack of knowledge, the Tribunal’s jurisdictional task commenced with the application for review. As set out above, there is no jurisdictional error in the Tribunal’s conduct of the review, nor in its analysis, reasoning, and findings, as set out in its decision record.
Conclusion
Neither the grounds of the application, nor the applicant’s submissions to the Court, reveal jurisdictional error in the Tribunal’s decision. It is appropriate to dismiss the application made to the Court. I will make that order.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 16 July 2020
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