SINGH v Minister for Immigration

[2017] FCCA 2716

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2716

Catchwords:
MIGRATION – Application for skilled provisional class VC visas – no jurisdictional error established – application dismissed.

Legislation:

Migration Regulations 1994 (Cth) cl.485.224

Cases cited:
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration v Pandey [2014] FCA 640

Minister for Immigration v SZVFW [2017] FCAFC 33
Sandhu v Minister for Immigration and Border Protection [2015] FCCA 711

First Applicant: KARAMVIR SINGH

Second Applicant: MAMTA KASHYAP

Third Applicant: SIFTI KAUR

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 575 of 2017

Judgment of: Judge Jarrett

Hearing date: 5 October 2017

Date of Last Submission: 5 October 2017

Delivered at: Brisbane

Delivered on: 5 October 2017

REPRESENTATION

Solicitors for the Applicant: Tonio Lawyers

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance.

ORDERS

1. The application for review be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRC 575 of 2017

KARAMVIR SINGH

First Applicant

MAMTA KASHYAP

Second Applicant

SIFTI KAUR

Third Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review in respect of a decision made by the Administrative Appeals Tribunal on 31 March, 2017 which affirmed a decision of a delegate of the first respondent to refuse to grant to the applicants skilled provisional class VC visas. 

2. The first applicant before me was the primary visa applicant.  The second and third applicants were secondary applicants for the visas.  They applied on the basis that they were part of the first respondent’s family unit. 

3. In essence, the applicant says that the Tribunal’s decision was legally unreasonable, because it refused to grant to him an adjournment in circumstances where he says an adjournment was appropriate so as to permit him more time to fulfil one of the criteria that was necessary to be satisfied for the grant of a visa.

4. The first respondent, in answer to that, says that the Tribunal’s decision was not unreasonable in the sense described in the authorities and this application should be dismissed. The second respondent enters a submitting appearance. 

5. I have the benefit of written submissions from each of the parties for which I am grateful.

6. The material discloses that the applicant is a citizen of India.  He applied for the relevant visa on 31 March, 2016.  In his visa application, he nominated a skilled occupation of “painting trades workers” and indicated that he had submitted a provisional skills assessment to Trade Recognition Australia on 31 March, 2016.  The applicant needed to be followed up by the first respondent’s department with respect to his skills assessment and there was some follow-up correspondence in respect of that. 

7. Ultimately, in September of 2016, the applicant provided to the first respondent’s department an unsuccessful skills assessment for the nominated skilled occupation of “painting trades workers”.  The unsuccessful skills assessment was dated 14 June, 2016 and so presumably had been in the applicant’s possession for some time.  The material shows that the skills assessment was refused because the applicant did not provide a work statement from his employer or a registered training organisation, did not provide evidence of hours worked and Trade Recognition Australia could not verify the applicant’s qualifications.

8. Consequently, the first respondent’s delegate found that the applicant did not satisfy clause 485.224(1) of schedule 2 of the Migration Regulations 1994 because his skills had not been assessed by a relevant assessing authority as suitable and, accordingly, he did not meet the criteria for the grant of a visa.  The visa was refused. 

9. The applicant sought review of that decision by the Tribunal.  He commenced that application on 5 October, 2016.  The Tribunal could not decide the application in the applicant’s favour on the papers and so invited him to appear at a hearing.  The hearing was to take place on 31 March, 2017.

10. It is of some moment, I think, to record that the hearing invitation sent by the Tribunal to the applicant notified him that he had not presented evidence that his skills had been assessed by a relevant assessing authority for the nominated occupation of “painting trades assistant” and the hearing invitation notified him that if he was unable to provide the relevant evidence to the Tribunal, it would require a good reason to grant him additional time to obtain it. 

11. The hearing proceeded on 31 March.  The applicant appeared by telephone. 

12. The Tribunal affirmed the delegate’s decision not to grant the applicant’s visa. It did so because the applicant did not provide to the Tribunal any evidence that he had the relevant skills assessment for the purposes of visa criterion 485.224 of schedule 2 to the Regulations. It seems an incontrovertible fact that he did not have such an assessment. What he did do was to seek further time from the Tribunal to obtain a successful skills assessment. Again, it is uncontroversial that he sought an adjournment of the hearing, or a postponement of it, so that he could apply for a further skills assessment which he contemplated would be successful.

13. The Tribunal dealt with that application and its reasons appear in paragraphs 18 and 19 of the Tribunal’s reasons for decision.  In those paragraphs, the Tribunal says this:

    18.    At the hearing, the Tribunal informed the applicant of the requirements of clause 485.224(1).  The applicant confirmed that he applied for the visa on 31 March 2016 and that his nominated occupation is painting trades workers.  The applicant stated that he does not have a positive skills assessment for that occupation.  His skills assessment was not successful.  The applicant has not applied for a further skills assessment.  The applicant was studying until last year.  He could only work 20 hours a week while the course was in session.  He is working now.  The applicant stated that he needs time to apply for a skills assessment. 

    19.    The Tribunal did not agree to allow the applicant time to apply for a further skills assessment.  He applied for the visa on 31 March 2016 and applied for a skills assessment with TRA, but the skills assessment was unsuccessful.  The letter from TRA advising the applicant that his application was unsuccessful is dated 14 June 2016.  The Tribunal is satisfied that the applicant has had time to apply for another skills assessment since 14 June 2016, but he did not do so.

14. It is tolerably clear from those paragraphs that the Tribunal’s reason for declining the adjournment request was that the applicant had been notified in June of the previous year that his application for a skills assessment had been unsuccessful and despite the passage of nearly nine months, he had not made a further application.  The Tribunal seems to have been aware that the applicant had a limitation on the number of hours he could work per week whilst he was still studying and also that he had recently obtained employment, but the gravamen of the Tribunal’s decision was that an adjournment was unnecessary, or uncalled for at least, given the delay that had passed between the notification of the unsuccessful skills assessment and the Tribunal’s hearing. 

15. Having determined to refuse the applicant’s request for an adjournment, the Tribunal had no option but to affirm the decision that was under review. 

16. From that decision, the applicant now seeks judicial review in this Court.  His ground of review is specified as follows:

    The second respondent fell into jurisdictional error in the review decision by refusing the applicant’s request for an extension of time under section 363B of the Migration Act 1958. The Tribunal did not afford the applicants an opportunity to properly obtain an updated skills assessment result which would have greatly impacted on the Tribunal’s decision pursuant to clause 485.224(1) of schedule 2. The Tribunal’s refusal is unreasonable, unfair and irrational and does not have an ‘evident, intelligible justification and is plainly unjust and otherwise arbitrary, capricious and abandons common sense’ (Minister for Immigration and Citizenship re Li [2013] HCA 18).

17. Both parties have set out the current jurisprudence relating to legal unreasonableness in their written submissions.  The applicants’ submissions take me to the decision of Wigney J in the Minister for Immigration v Pandey [2014] FCA 640 at paragraph 41 where there is a discussion about legal unreasonableness. The Minister’s submissions take me to the Minister for Immigration v SZVFW [2017] FCAFC 33 which sets out an exhaustive statement of the principles to be applied when determining whether a decision demonstrates jurisdictional error because it is legally unreasonable. The tests set out in each of the authorities are not inconsistent.

18. In support of his argument, the applicant refers to two cases: the seminal decision of Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and a second decision of Emmett J in Sandhu v Minister for Immigration and Border Protection [2015] FCCA 711. The facts of Li are well-known. The applicant was a student obtaining work experience as a cook. She failed a positive skills assessment for her nominated skilled occupation that was necessary for the purposes of supporting her visa application and she made a second application for a skills assessment. By the time a review Tribunal came to deal with her application for review, she had made a second application for the skills assessment and was awaiting its outcome. The Tribunal refused to permit the applicant any further time to receive the skills assessment. The decision under review was affirmed; that decision went on review to this Court (when it was known as the Federal Magistrates Court) and the federal magistrate determined that the Tribunal’s decision was legally unreasonable in the circumstances and that the adjournment ought to have been granted. Ultimately, that decision was tested in the High Court which upheld that decision.

19. Sandhu is a decision of a judge of this Court, which is of some similarity to Li.  In Sandhu, Judge Emmett, after recording the facts of the case, said that the Tribunal’s determination not to grant the applicant further time to await receipt of results of a further skills assessment was legally unreasonable.  In that case, by the time the matter had reached the Tribunal hearing, a second application for a positive skills assessment had been made.  There was evidence before the Tribunal that the outcome was likely to take about 30 days, but, nonetheless, the Tribunal refused to await the receipt of the outcome of that skills assessment and affirmed the decision under review. 

20. Judge Emmett decided that the approach by the Tribunal met the criteria for legal unreasonableness.  In particular, at paragraphs 62 and 63, her Honour says this:

    62.    The applicant’s request to the TRA for a further assessment was made promptly following the MRT hearing.  The evidence before the MRT was that there would be an outcome of the second TRA within a matter of three or four weeks.  According to the TRA letter dated 4 September 2013, the applicant had provided her evidence in support and most applications were assessed within 30 days of receipt of the evidence in support.  Not to allow the applicant that time, which may have provided her with evidence to support a submission as to why PIC 4020(1) should be waived, was unreasonable to the point of being capricious and arbitrary and satisfies the stringent test of legal unreasonableness. 

    63.    In the circumstances, I am satisfied that the decision of the MRT does not have an evident intelligible justification.  It is plainly unjust and is otherwise arbitrary, capricious and abandons common sense.  Accordingly, the unreasonableness of the MRT in refusing to grant the applicant further time to provide evidence that was clearly underway and would be available in a relatively short period of time can be characterised as legal unreasonableness.

21. The present case is not like Li, nor is it like Sandhu.  Unlike Li, there is no second application for a skills assessment on foot, either at the time of the Tribunal’s hearing or at any time before the Tribunal determined the application.  Unlike Sandhu, there was no application for a second skills assessment that was made after the Tribunal hearing, but before the Tribunal’s determination.  Here, at best, is a suggestion by the applicant that he would apply at some indeterminate time in the future for a second skills assessment.  I can see nothing in the material that would suggest that any particular timeframe was put on that application by the applicant and on inquiry with those at Bar, the response was that there was nothing in the material before the Tribunal that suggested that the applicant intended to make the second skills assessment application within any particular timeframe. 

22. In the circumstances where the Tribunal was confronted with an abject failure to meet the visa criteria and no real suggestion that a second skills assessment was to be made within any particular timeframe, the Tribunal’s decision to refuse the adjournment cannot, in my view, be said to be capricious, arbitrary or legally unreasonable.  In my view, the Tribunal has explained why it refused the adjournment and, on the facts of this case, the refusal of the adjournment was not legally unreasonable. 

23. The decision is not affected by jurisdictional error and the application for review must be dismissed. 

    RECORDED  :  NOT TRANSCRIBED

24. The first respondent applies for its costs of the proceedings.  In proceedings of this nature, costs ordinarily follow the event.  The general rule is that unless there are special circumstances, that usual rule should be applied.  The applicant here says that he is unable to afford the amount that is sought by the first respondent by way of costs.  But an inability to pay, or impecuniosity generally, does not usually amount to special circumstances sufficient to displace the application of the usual rule.  Costs should follow the event.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 5 October, 2017.

Date: 8 November 2017