Singh v Minister for Immigration and Anor (No.2)
[2019] FCCA 2345
•21 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2019] FCCA 2345 |
| Catchwords: MIGRATION – Temporary Graduate (Graduate Work) (Subclass 485) visa – decision of the Administrative Appeals Tribunal – whether unreasonable failure to adjourn – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.366, 476 Migration Regulations 1994 (Cth), cl.485.224 of sch.2 |
| Cases cited: AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 Minister for Immigration & Citizenship v SZNCR [2011] FCA 369 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | PRABHJIT SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 310 of 2017 |
| Judgment of: | Judge Kendall |
| Hearing date: | 21 August 2019 |
| Date of Last Submission: | 21 August 2019 |
| Delivered at: | Perth |
| Delivered on: | 21 August 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms G Ellis |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The name of the first respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 310 of 2017
| PRABHJIT SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex-Tempore; Revised from Transcript)
The applicant filed an application in this Court on 9 June 2017 seeking judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 15 May 2017.
The Tribunal affirmed a decision of the first respondent (the “Minister”), not to grant the applicant a Temporary Graduate (Graduate Work) (Subclass 485) visa (the “visa”).
This proceeding is brought pursuant to s.476(1) of Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must establish that the Tribunal has fallen into jurisdictional error.
Before the Court today the applicant appeared on his own behalf without legal representation. The Minister was represented by Ms Ellis. The Court thanks her for her assistance. For reasons already given, the Court refused an application for an adjournment made by the applicant in an application in a case: Singh v Minister for Immigration & Anor [2019] FCCA 2344. The matter has proceeded on the basis of it being a final hearing.
The materials before the Court include the application filed 15 May 2017, a Court Book comprising of 115 pages and marked as Exhibit 1 and a written outline of submissions filed by the Minister on 22 July 2019.
The applicant raised an issue (which the Court addressed in the context of the adjournment application) which went to whether or not he had actually received the Court Book on the date in which it was originally sent. He indicated that he had not actually received a copy of the Court Book until 16 July 2019.
The Court need not make a determination on whether or not this is true. The Court is satisfied that in the one month the applicant has had the Court Book, he was able to adequately prepare for the hearing. The Court notes that many of the documents in the Court Book were, in fact, documents the applicant had provided himself to the delegate or the Tribunal.
Background
The factual background to this matter is accurately set out at [3]-[16] of the Minister’s written submissions. The Court has read and reviewed the Court Book (“CB”) in detail and is satisfied that the summary provided by the Minister is accurate. The Court adopts that summary as its own. It provides as follows.
The applicant, a citizen of India, first arrived in Australia in 2014 (CB 9). On 11 August 2016, he applied for the visa with the assistance of a registered migration agent (CB 1-12). In the application, he indicated that he had applied for a skills assessment on 9 August 2016 (CB 10).
On 21 September 2016, the applicant wrote to the department and stated that he had received an acknowledgment of the provisional skills assessment application from Trades Recognition Australia (“TRA”) on 29 August 2016, but was awaiting the assessment outcome. He requested an extension of time in which to submit the outcome of the skills assessment (CB 49).
On 22 September 2016, the department wrote to the applicant and requested that he provide the outcome of the skills assessment, amongst other information, within 28 days (CB 58-63).
On 26 October 2016, the department wrote to the applicant and referred to the applicant’s request for an extension of time within which to provide the outcome of the skills assessment dated 21 September 2016. The department granted the applicant an extension of 14 days, until 9 November 2016, to submit the outcome of the skills assessment (CB 64-65).
The applicant did not provide the outcome of the skills assessment to the department, and did not contact the department again.
On 6 December 2016, the delegate refused to grant the visa. The delegate found that the applicant had not provided the skills assessment outcome from the TRA, and accordingly, that the applicant did not meet the requirements of cl 485.224(1) of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 70-72).
On 23 December 2016, the applicant lodged an application for review of the delegate’s decision to the Tribunal (CB 74-75). The applicant was represented by the same registered migration agent.
On 18 April 2017, the Tribunal invited the applicant to appear before it to give evidence and present arguments at a hearing scheduled to take place on 15 May 2017 (CB 80-83). The hearing invitation stated (CB 83):
We note that to date you have not presented evidence that your skills have been assessed by the relevant assessing authority for your nominated skilled occupation. Please provide evidence that your skills have been assessed by the relevant assessing authority for your nominated occupation at (or before) hearing. Please note that if you are unable to provide the relevant evidence, we will require good reason to grant to additional time to obtain it.
On 11 May 2017, the applicant requested a postponement of the hearing on the basis that his mother was ill and he was returning to India to be with her (CB 86-87). It was submitted that the applicant would not be able to attend the hearing “owing to this sudden change of events…as his mental status quo also would not be normal” (CB 88-89). On 12 May 2017, the applicant provided a medical certificate for his mother (CB 90).
On 12 May 2017, the Tribunal informed the applicant that the Member was unable to make a decision on the adjournment request today, and that the applicant would be notified on Monday. The Tribunal further requested a telephone number to contact the applicant for the hearing (CB 91).
Later on 12 May 2017, the Tribunal requested the applicant provide copies of his airline tickets and the date upon which the tickets were purchased. The Tribunal stated that unless advised otherwise, the hearing would proceed and requested the applicant’s overseas telephone number (CB 92).
On 13 May 2017, the applicant confirmed that he and his agent would be available to appear at the Tribunal hearing via telephone, and informed the Tribunal they could be reached on the Australian telephone number listed in the Tribunal application (CB 93-94).
The hearing proceeded on 15 May 2017 as scheduled. The applicant appeared via telephone and was assisted by his agent (CB 95-97).
On 15 May 2017, the Tribunal made an oral decision affirming the decision under review (CB 102). A written statement was published on 22 June 2017 (CB 109-110).
Tribunal’s Decision
The Tribunal made an oral decision on the day the applicant attended a hearing before it (being 15 May 2017). The Tribunal published its reasons on 22 June 2017.
The Tribunal’s decision in full reads:
1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 December 2016 to refuse to grant the visa applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under the Migration Act 1958 (the Act).
2. In his oral evidence the applicant stated that:
• He applied for a subclass 485 visa on 11 August 2016;
• The department refused to grant the visa on 6 December 2016 on the basis that he was unable to meet the cl.485.224(1) because the skills of the applicant for his nominated skilled occupation have not been assessed by a relevant assessing authority as suitable for that occupation;
• He confirmed that he provided a copy of the primary decision record to the tribunal;
• He applied to Trades Recognition Australia (TRA) for skills assessment for his nominated occupation of a Chef on 9 August 2016;
• He received a negative outcome from TRA on 5 December 2016;
• He sought the review of TRA decision and again received negative outcome;
• He did not apply for any further skills assessment as he did not have time to do so. He has now completed 360 hours of practical experience.
3.I explained to the applicant the requirements of cl.485.224(1).
4. At the hearing on 15 May 2017 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.
STATEMENT OF DECISION AND REASONS
5. Based on the evidence before me I am not satisfied that you meet the requirements of cl.485.224(1). In your evidence, you stated that you do not have a positive skills assessment for your nominated skilled occupation from the relevant assessing authority.
6. Accordingly, you do not meet the requirements of cl.485.224 (1) and for that reason I affirm the decision under the review not to grant you Skilled Graduate visa subclass 485.
DECISION
7. The Tribunal affirms the decision under review.
Proceedings in this Court
As indicated, the applicant filed his judicial review application on 9 June 2017. The application raised one ground of review as follows:
1. This is with respect to the application filed for the Refusal for Skilled (Provisional) (Class VC) visa. After the lodgement of the application, there was a request for extension, as my skills assessment had not been received. Further to this, the officer provided a period of 14 days. Due to the delay in the procuring the skills assessment, the then case officer rejected the visa. Hence, I request you to consider my application for the same.
The applicant was provided an opportunity by a Registrar of this Court to file any amended application, affidavit evidence and an outline of submissions. Unfortunately, nothing was filed by the applicant.
Noting recent remarks in the Federal Court in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] that an unrepresented applicant should be offered an opportunity to explain orally their grounds of review, and any other concerns that they might have had in relation to the Tribunal’s decision, the Court offered the applicant an opportunity to make further submissions and address any concerns he might have.
In this context, the Court explained to the applicant the types of “errors” that this Court can look for in determining whether the Tribunal fell into “jurisdictional error”. It was explained that for migration decisions of this sort, the categories of jurisdictional error most commonly include (but are not limited to):
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]-[17]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28] (“Li”); Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa he now seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against that background the Court asked the applicant to explain what he thought the Tribunal “did wrong”.
In effect, the applicant stressed that he really only tried to do the right thing and that he had not done anything inappropriate or incorrect. The Court has no reason to doubt the applicant’s sincerity in that regard. It is clear that this applicant, like many other applicants in this Court, did what he thought was best and did what he thought was appropriate. Unfortunately, the contentions made orally today really went no further than to address the merits of the Tribunal’s Decision. Regrettably, this Court cannot assist the applicant in relation to concerns of that sort.
Statutory Framework
The applicant had applied for a subclass 485 visa. In order to be granted that visa the applicant was required to satisfy the Tribunal that he met the relevant criteria. Relevant to this matter is cl.485.224 of the Regulations which provides:
485.224
(1) The skills of the applicant for the applicant’s nominated skilled occupation have been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation.
(1A)If the assessment is expressed to be valid for a particular period, that period has not ended.
(2)If the applicant’s skills were assessed on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification was obtained as a result of studying a registered course.
Consideration
Ground 1
1. This is with respect to the application filed for the Refusal for Skilled (Provisional) (Class VC) visa. After the lodgement of the application, there was a request for extension, as my skills assessment had not been received. Further to this, the officer provided a period of 14 days. Due to the delay in the procuring the skills assessment, the then case officer rejected the visa. Hence, I request you to consider my application for the same.
The Court notes the Minister’s submissions at [20]-[26]:
20.The applicant’s ground appears to seek review of the delegate’s decision. To the extent that the applicant seeks review of the delegate’s decision the ground must fail. The Court has no jurisdiction to conduct a review of that decision. In any event, it is well established that if the Tribunal’s decision is not flawed, it cures any defects and irregularities in the delegate’s decision.
21 To the extent that the applicant claims that the Tribunal erred by failing to adjourn the review to provide him with a further opportunity to obtain a positive skills assessment, the application must be dismissed for of the following reasons.
22 First, there is no evidence that the applicant requested an adjournment of the Tribunal proceedings in order to have further time to submit evidence of a positive skills assessment.
23 Second, whilst the applicant initially requested an adjournment of the Tribunal proceedings on the basis that his mother was unwell, he had to travel back to India to see her, and he was not in a “normal” mental state, he subsequently agreed to appear before the Tribunal at the scheduled hearing, which he attended with the assistance of his agent: CB 93-94 and 95-97. In these circumstances, the Tribunal’s decision not to adjourn the review pursuant to s 363(1)(b) of the Act cannot be said to have been unreasonable, in the sense that it was “legally unreasonable”, “unfair” or “plainly unjust.”
24 Third, the applicant had been aware of the requirement to provide a positive skills assessment since the department’s request for information sent on 22 September 2016 (CB 58-63). He was put on notice of the requirement again by the delegate’s decision (CB 70-72), and again by the Tribunal’s invitation to hearing (CB 80-83).
25 No error arises from the Tribunal’s decision not to adjourn the review.
26 Furthermore, the Tribunal had no power to waive the requirement to provide a positive skills assessment. It was not contested before the Tribunal that the applicant did not satisfy cl 485.224(1), and his evidence to the Tribunal was that his application for a skills assessment and the subsequent review had been unsuccessful, and he had not applied for any further skills assessment. Given the applicant’s inability to satisfy this mandatory criterion, affirming the decision under review was the only course open to the Tribunal.
(Footnotes omitted)
The Court agrees with the content and conclusions in the Minister’s submissions.
The Court finds that the applicant’s ground of review is misconceived and is not entirely clear.
The applicant appears to be referring to the delegate’s decision; not the Tribunal’s Decision. Following a request for more information from the Minister’s Department being sent to the applicant’s representative on 22 September 2016 (specifically identifying the need for a skills assessment), the applicant’s representative sought an extension of time in which to provide the skills assessment. The delegate granted that extension and the applicant was provided a 14 day extension to provide the skills assessment (CB 64). The letter confirming the extension stated as follows:
If the skills assessment outcome is not received by this date, the department will proceed to make a decision on Mr Singh’s visa application based on the information available on 9 November 2016.
Unfortunately for the applicant, no skills assessment was provided. It is not entirely clear whether that was his fault or the fault of his agent. On 6 December 2016, the delegate made a decision to refuse the visa on the basis that the applicant did not meet cl.485.224(1) as he had not provided a Skills Assessment.
To the extent that the applicant seeks review of the delegate’s decision, this Court has no jurisdiction to do so: s.476(4) of the Act
The Court has sought to identify what arguments the applicant might be raising, and if there are any other issues that arise on the face of the materials before the Court. The Minister referred to the Tribunal refusing an adjournment of the hearing in circumstances where the applicant alleged that his mother had been unwell and he needed to travel to India, and in circumstances where the applicant alleges that he needed more time to obtain a positive skills assessment.
As to the refusal to adjourn on the basis of what the applicant might have said in relation to his mother and the need to travel back to India, the Court is not satisfied it was unreasonable for the Tribunal to proceed with the hearing. The Court notes that:
a)the applicant’s agent indicated that the applicant agreed that he would be available by telephone, and there did not appear to be any objection to that course of action (CB 93);
b)the applicant was represented and, in the absence of a transcript, it does not appear to have been pressed at the Tribunal hearing for an adjournment to a later time;
c)the Tribunal has the discretion to permit an applicant to appear by telephone (s.366) and the applicant (again) did not raise any objection; and
d)while the representative did suggest the applicant’s “mental status quo” would not be normal, again the representative indicated that the hearing should proceed and, in any event there was no evidence that the applicant was “unable” to give evidence. The Tribunal noted the oral evidence the applicant provided at the hearing. The Court is not satisfied, on the evidence before the Court, that the fact that the applicant may or may not have had a “normal mental status” is sufficient to find that there has been a denial of procedural fairness. On the material before the Court it is evident that the applicant was able to, and did, participate in the hearing: Minister for Immigration & Citizenship v SZNCR [2011] FCA 369 at [30]-[34].
There was no error in the Tribunal failing to postpone the hearing in relation to the matters raised above. While this Court might have found differently, that is not the relevant test here. On the evidence before the Court, it cannot be said that the determination made by the Tribunal was not open to it
Another argument that arises on the face of the decision is whether the Tribunal should have adjourned to allow the applicant to obtain a positive skills assessment. The Tribunal records that the applicant’s evidence was that he did not apply for any further skills assessment as he did not have time to do so (at [2]).
The Court stresses that in relation to the hearing today the Court did not have the benefit of a transcript as the applicant had not provided evidence of that sort and it is his obligation to do so. On the basis of the evidence before it, the Court is not satisfied that it was unreasonable for the Tribunal not to adjourn to allow the applicant to obtain a positive skills assessment. Indeed, there is nothing to suggest that the applicant requested an adjournment to obtain a skills assessment.
The applicant stated he had not applied for a further skill assessment. He simply indicated he had not had the “time” to do so. The Court notes that there was some six months between the delegate’s decision and the Tribunal’s decision. Unlike in Li, here the applicant offered no reason that would allow the Tribunal to expect that the criterion would be met or that there was a proper basis for expecting a favourable outcome. The fact was, simply, that the applicant did not apply for an assessment to obtain a favourable outcome.
The applicant had been alerted to the issue of not having evidence of a skills assessment, yet took no action because he “did not have time”. The Court does not consider it unreasonable for the Tribunal not to adjourn when the applicant was on notice of the central issue and did not actively seek to rectify the issue.
No error arises in failing to adjourn to allow the applicant to obtain the skills assessment.
The Court has also considered the decision as a whole and is unable to identify any jurisdictional error. In circumstances where, at least on the face of the Tribunal’s decision and without the benefit of a transcript, it was not disputed that the applicant did not meet cl.485.224(1), the only option in the circumstances of this case was for the Tribunal to refuse the visa.
Conclusion
The applicant has failed to satisfy the Court there is any error in the Tribunal’s decision. The Court has otherwise been unable to detect any error in the Tribunal’s decision.
While the Court does not doubt the sincerity of the applicant’s evidence today, the Court is unfortunately unable to assist him.
The application, accordingly, is dismissed.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 4 September 2019
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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