Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1233

FEDERAL CIRCUIT COURT OF AUSTRALIA

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1233

File number(s):

MLG 1212 of 2014

Judgment of:

JUDGE BLAKE

Date of judgment:

4 June 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – Skilled (Provisional) (Class VC) (Subclass 485) visa – whether the Tribunal failed to accord natural justice and procedural fairness - whether the opportunity to obtain a suitable skills assessment should have been allowed – no jurisdictional error established – Application dismissed.  

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth) reg 1.15I of Schedule 1, cl 2.26B of Schedule 1, cl 485.221 of Schedule 2

Number of paragraphs:

21

Date of hearing:

24 May 2021

Place:

Melbourne

Advocate for the Applicant:

In person

Solicitor for the Applicant:

None

Solicitor Advocate for the Respondents:

Mr Creedon

Solicitor for the Respondents:

Australian Government Solicitor

ORDERS

MLG 1212 of 2014

BETWEEN:

AVTAR SINGH

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE BLAKE
DATE OF ORDER:	4 JUNE 2021

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to 'Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs'.

2.The name of the Second Respondent be amended to 'Administrative Appeals Tribunal'.

3.The Application filed on 19 June 2014 be dismissed.

4.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $6,000.

REASONS FOR JUDGMENT

JUDGE BLAKE:

INTRODUCTION

1. This is an application for review of a decision made by the then Migration Review Tribunal (now Administrative Appeals Tribunal) ('Tribunal') on 28 May 2014. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a Skilled (Provisional) (Class VC) (Subclass 485) visa ('visa').

2. For the reasons that follow, I have decided to dismiss the application for review.

   BACKGROUND

3. The Applicant is an Indian national. He applied for the visa on 10 September 2012.

4. On 22 January 2013, the Department of Immigration and Citizenship ('Department') wrote to the Applicant. In that letter, the Department requested that the Applicant provide further information to the Department in support of his application, including a skills assessment. The Applicant did not respond to that request.

5. On 4 March 2013, a delegate of the Minister ('delegate') refused to grant the Applicant the visa. The delegate found that the Applicant did not satisfy clause 485.221 of Schedule 2 to the Migration Regulations 1994 (Cth) ('Regulations'). Specifically, there was not proof that the Applicant's skills had been assessed by an assessment authority as required by the relevant regulations. The Applicant was re-notified of this decision on 25 November 2013.

6. The Applicant subsequently sought a review of the delegate's decision by the Tribunal. The application to the Tribunal discloses that the Applicant was represented at the time the application was filed.

7. On 23 April 2014, the Tribunal wrote to the Applicant and invited him to appear before the Tribunal to give evidence and present arguments. The Tribunal also invited the Applicant to provide any documents in support of his claim to the Tribunal.

8. The Applicant did not provide any documents to the Tribunal. Further, the Applicant did not attend the hearing nor contact the Tribunal in relation to his non-attendance. The Tribunal proceeded to determine the matter on the material before it.

9. On 28 May 2014, the Tribunal affirmed the decision not to grant the Applicant the visa.

10. The Applicant filed his Application for Review ('Application') and affidavit in support in this Court on 19 June 2014. The Application is dated 13 June 2014, and the affidavit appears to have been affirmed on 18 June 2014. It is not necessary to traverse in any great detail the various procedural matters that have delayed the final hearing of the matter and have led to the Application presently being listed before me, other than to note that on 6 November 2019, this Court made orders for the filing of any amended application, a Court Book and written submissions. The Minister filed a Court Book and a written Outline of Submissions. The Applicant did not file any further material.

11. The Final Hearing was listed before me on 22 April 2021. I adjourned the matter on that day as the Applicant contended he had not received, among other things, a copy of the Court Book. I made orders to rectify that and listed the matter for Final Hearing on 25 May 2021.

    THE DECISION OF THE TRIBUNAL

12. The decision of the Tribunal is of short compass. In summary, the Tribunal:

    (a)identified the criteria for the grant of a subclass 485 visa (at paragraph [2] of its reasons);

    (b)noted that the delegate refused to grant the visa to the Applicant because the Applicant did not satisfy clause 485.221 of Schedule 2 to the Regulations. The delegate was not satisfied that the Applicant's skills for his nominated occupation had been assessed as suitable by the relevant assessing authority (at paragraph [3] of its reasons);

    (c)noted that it had invited the Applicant to appear before it to present arguments and give evidence, that he had not appeared, and that the Tribunal had proceeded to make a decision on the material before it (at paragraph [5] of its reasons);

    (d)set out the relevant requirements of clause 485.221 (at paragraph [7] of its reasons);

    (e)noted that the Applicant had nominated the occupation of 'Baker' as a specified skilled occupation for which the relevant assessing authority is Trades Recognition Australia, (at paragraph [8] of its reasons);

    (f)found that the Applicant's skills have not been assessed as suitable for the nominated skilled occupation by the relevant assessing authority and therefore that the Applicant did not satisfy the requirements of clause 485.221 (1) of the Regulations (at paragraph [9]-[10] of its reasons);

    (g)concluded that as the Applicant did not satisfy the criteria for the grant of the subclass 485 visa, the decision under review was to be affirmed (at paragraphs [11]-[13] of its reasons).

    THE APPLICATION

13. Two brief grounds of review are contained within the Application. They are as follows:

    1.The MRT failed to accord the Applicant natural justice and procedural fairness.

    2.The Applicant should have been allowed an opportunity to obtain a suitable skills assessment.

14. In addition to the ground set out above, in his affidavit filed in support of the Application, the Applicant stated that the Tribunal 'should have given me one opportunity to obtain my skills assessment'.

15. The Applicant appeared before me unrepresented. At the outset, I invited him generally to identify the error or mistake made by the Tribunal. The Applicant stated that the Tribunal did not make any mistake. I then took the Applicant to his application for the visa, the decision of the Tribunal and his Application filed in this Court. I explained to him that my role was to review the decision of the Tribunal for any error. I asked him again to speak to me about his case and in particular whether the Tribunal had committed any error. The Applicant stated once again that the Tribunal did not commit any error. He also submitted that his application had been completed by a friend, who had made mistakes and then refused to do anything to fix it. He also claimed that he went through a period of depression. He did not produce any medical evidence in relation to any period of depression, or how this affected his application for the visa.

16. Given the Applicant's unrepresented status, I have reviewed the relevant regulatory framework and the decision of the Tribunal. In relation to the relevant regulatory framework, it is important to record the following:

    (a)Clause 485.221 of Schedule 2 to the Regulations relevantly provided that the 'skills of the applicant for the applicant's nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation';

    (b)Regulation 1.15I of the Regulations defines the term 'skilled occupation'. Relevantly, the Minister may specify by instrument in writing an occupation to be a skilled occupation;

    (c)Clause 2.26B of the Regulations defines the term 'relevant assessing authorities'. Relevantly, the Minister may by instrument in writing specify a body or person as a 'relevant assessing authority' for a skilled occupation;

    (d)Specification of Occupations, a Person or Body, a Country or Countries - IMMI 12/039 (Cth) F2012L01451 ('IMMI 12/039') which applied at the time relevantly specified the occupation of 'Baker' and also specified the relevant assessing authority as Trades Recognition Australia ('TRA’).

17. The Applicant in his application for the visa nominated the position of 'Baker' (Court Book 15). The Applicant did not, however, provide any evidence that he had obtained a skills assessment for the position of 'Baker' from TRA. In that circumstance, the Tribunal made the only decision available to it. It refused to grant the Applicant the visa and affirmed the decision of the delegate. Plainly, that was a decision that was open to the Tribunal.

18. In his Application, the Applicant claims that he was denied procedural fairness and natural justice. This ground of review is not particularised and the Applicant was unable to advance it meaningfully during the hearing. A review of the matter indicates, as I have noted above, that the Applicant was provided with notice of the hearing and was invited to attend before the Tribunal (Court Book 54-56). He was invited to provide information in order to demonstrate that he met the mandatory criteria. He did neither of those things, that is, he did not provide information and he did not attend the hearing. He did not seek more time nor did he seek to have the hearing adjourned. When the Applicant did not appear, the Tribunal decided to proceed on the evidence before it. It was entitled to do that in circumstances where it was satisfied that the Applicant had been invited to appear before it. In the circumstances, I am satisfied that the Applicant was not denied procedural fairness or natural justice. Ground 1 of the grounds of review must be dismissed.

19. Under Ground 2 of the grounds of review and in his affidavit, the Applicant claims that he should have been allowed an opportunity to obtain a suitable skills assessment. The Applicant does not say what should have occurred. He did not meaningfully advance this ground before me during the hearing, other than to say in a generic sense that he was depressed. He did not claim, and there is no evidence before me to suggest, that whatever illness or depression he may have suffered from prevented him from attaining the skills assessment. There is no evidence before me or before the Tribunal that he requested further time in order to obtain a skills assessment. It is relevant to note that the Applicant was aware from the time the delegate made the decision on 25 November 2013 that the absence of a skills assessment was a reason why his application for a visa had been refused. In all the circumstances, the Tribunal did not make any error in proceeding with the hearing and in not allowing the Applicant more time to obtain a skills assessment from TRA.

20. For all of the above reasons, the Application must be dismissed.

21. In addition to seeking an order that the Application be dismissed, the Minister has sought orders to correct the names of the First Respondent and the Second Respondent, and I will make those orders. The Minister has also sought that the Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $6,000. In making that claim, I note that the amount sought is less than the scale costs and that the Minister has not sought costs in relation to the reinstatement of the Applicant's Application in this Court in November 2019. In all the circumstances, I regard the claim to costs as appropriate and I will make an order for costs in that amount.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake.

Associate:

Dated:       4 June 2021