Sudan v Minister for Immigration

[2014] FCCA 2136

FEDERAL CIRCUIT COURT OF AUSTRALIA

SUDAN v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2136

Catchwords:
MIGRATION – Judicial review – failure to provide evidence required to satisfy criteria for a visa – alleged fraud by migration agent – not established –application dismissed.

Legislation:  

Federal Circuit Court Rules 2001, rr.13.03C(1)(e), 15.03
Migration Act 1958, s.359
Migration Regulations 1994, Sch.2, reg.485.221

Kim v Witton (1995) 59 FCR 258
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559
Natalia Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436
SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145

Applicant: SARABJEET SINGH SUDAN

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 2253 of 2013

Judgment of: Judge F. Turner

Hearing date: 25 August 2014

Date of Last Submission: 25 August 2014

Delivered at: Melbourne

Delivered on: 25 August 2014

REPRESENTATION

The applicant did not appear

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The applicant’s request for an adjournment is refused.

2. Pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 the Court proceeds to deal with the claim in the absence of the applicant.

3. The application for judicial review filed on 17 December 2013 is dismissed.

4. The applicant pay the first respondent’s costs fixed in the sum of $3,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 2253 of 2013

SARBJEET SINGH SUDAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicant seeks an adjournment of today’s hearing and provides a medical certificate which merely states that the applicant:

   “… is suffering from a medical condition and for the period from 22 August, 2014 to 26 August, 2014 inclusive He is unfit to attend the court hearing because of the illiness (sic “illness”)”.

2. The first respondent opposes an adjournment.

3. In NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559, medical certificates were presented by each applicant in support of an adjournment. The certificates were similar to that provided here, and in that case stated:

   “This is to certify that on 13/12/2003 I examined the above person. In my opinion he/she is suffering from … and will be unable to attend court from 13/12/2003 to 01/01/2004 inclusive.”

4. In NAKX (supra), Lindgren J decided at [6] to [8] in relation to such certificates:

   “The medical certificates are quite unsatisfactory. They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a court hearing.

   I do not accept that either of the medical conditions referred to would make the sufferer ‘unable to attend court’ – apparently each was able to attend upon the medical practitioner.

   If the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a court hearing, they do not in fact say that and do not explain why the medical condition would have that effect.”

5. The Court applies that decision here. The Court advised the applicant by email that the medical certificate was insufficient for the Court to adjourn the hearing and that the matter remained listed for hearing at 10 am on 25 August 2014.

6. The medical certificate here does not state what the medical condition is, and why it would prevent the applicant travelling to the Court and participating effectively in the hearing. The Court finds that the medical certificate is “quite unsatisfactory”.

7. The applicant has failed to attend the hearing today and, pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (the “Rules”), the Court will proceed with the hearing generally. The application for an adjournment is dismissed.

8. This is an application for judicial review of the decision of the Migration Review Tribunal (the “Tribunal”) dated 22 November 2013. That decision affirmed a decision of a delegate to the Minister not to grant the applicant a Skilled (Provisional) (Class VC) visa.

9. At the hearing before the Court today, the applicant has failed to appear and the first respondent is represented by Mr Hutton. The first respondent has consented to the Court dealing with this matter pursuant to r.15.03 and reaching a decision without hearing oral submissions.

10. The applicant applied for a Class VC visa on 2 March 2011 (Court Book “CB” p.1). At that date, Class VC contained two subclasses: 485 and 487, the criteria for which are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (the “Regulations”). The application form indicates that the relevant subclass was 485 (CB p.1.2).

11. Clause 485.221 is a mandatory requirement for a subclass 485 visa. The relevant parts of cl.485.221 at the time were as follows:

    (1)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.

    (2)If the assessment mentioned in subclause (1) is made on the basis of a qualification obtained in Australia while the applicant was the holder of a student visa, the qualification was obtained as a result of studying a registered course.

12. On 10 February 2012, the Department requested the applicant to supply additional information including “Skills Assessment for your nominated occupation” (CB p.17.10). As at the date of the delegate’s decision, the applicant had not provided any evidence that he had completed a skills assessment (CB p.25.8). The delegate therefore refused a visa because the applicant did not meet the requirements of reg.485.221. The applicant then applied to the Tribunal to review the decision of the delegate (CB p.37).

13. On 2 July 2013, a Tribunal officer wrote to the applicant advising that:

    “There is no evidence before the tribunal that your skills have been assessed as suitable by the relevant assessing authority for your nominated skilled occupation.” (CB p.76)

    The Tribunal invited the applicant to provide the evidence by no later than 1 August 2013 (CB p.76.5).

14. On 3 October 2013, the Tribunal wrote a letter to the applicant inviting him to comment on, respond to and provide information (CB p.78). The Tribunal stated the applicant had applied for a nominated skilled occupation as a cook and that the applicant had not submitted any evidence that his skills had been recognised or assessed by Trades Recognition Australia (“TRA”) as suitable for his nominated occupation (CB p.78.6).

15. The Tribunal advised the applicant that the information was relevant, because in order to meet the requirements of cl.485.221, he was required to provide evidence that his skills had been assessed by the relevant assessing authority as suitable for that occupation and that there was no evidence before the Tribunal that that was the case (CB p.78.8).

16. The Tribunal then advised the applicant that unless he provided that evidence, the Tribunal may find that he did not meet the requirements of 485.221 and it would have no option other than to affirm the decision of the delegate (CB p.78.9).

17. The Court finds that the requirements of s.359A of the Migration Act 1958 (the “Act”) were therefore met.

18. The applicant failed to provide any evidence that his skills had been assessed by TRA as suitable for his nominated skilled occupation as a cook (CB p.87.8).

19. The Tribunal stated at [25]-[27] (CB p.87.9) that:

    “The Tribunal has considered whether it should allow the applicant additional time in which to meet the requirements of clause 485.221. In doing so, it has had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.

    In addition, the Tribunal has taken into account that the applicant has been aware of the basis for the refusal of his subclass 485 visa application for approximately 19 months and that the Tribunal has issued two invitations to him on 2 July 2013 and 3 October 2013 to do so. However, despite being represented by a registered migration agent lodging the application for review, the applicant has not done so.

    In the circumstances, the Tribunal considers that the applicant has had sufficient time to take steps to satisfy the regulatory criteria, and it does not propose to postpone its decision-making any further to allow him additional time in which to obtain the required skills assessment.”

    [1] [2002] FCA 617

    [2] [2012] FMCA 28

20. The Tribunal found at CB p.88.4 [28] that:

    “As a result, the Tribunal finds that the applicant’s skills have not been assessed as suitable for his nominated skilled occupation by the relevant assessing authority, and that he therefore does not satisfy the requirements of subclause 485.221(1). It follows the applicant does not meet the requirements of clause 485.221.

    On the basis of the above findings, the Tribunal finds that the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.”

21. “Whether the applicant has “complied substantially” with a [visa] condition… is a question of fact, to be determined having regard to the particular circumstances of the case”: see statements in Kim v Witton (1995) 59 FCR 258 at p.271 followed in Natalia Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436. Findings of fact are not amenable to judicial review.

22. In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, the Full Court decided at [10]:

    “In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”

23. By orders dated 5 March 2014, the applicant was ordered to file and serve written submissions by 10 July 2014. He failed to do so. By failing to attend today, he has denied himself the opportunity of making oral submissions.

24. The applicant’s grounds for judicial review are set out in his application filed 17 December 2013 as follow:

    (1)S.477, Judicial review can be lodged within 35 days after tribunal review has been finalised

    (2)I am not happy with tribunal decision, applying for judicial review for legitimate decision

    (3)I do have exceptional circumstances beyond the application lodgement previously

    (4)There are same cases which have got positive decision in High court, therefore I got hope that I could win the case I High court

25. The first respondent filed Contentions of Fact and Law on 7 August 2014. The Court has obtained consent from the first respondent for the Court to reach a decision without hearing oral submissions.

26. The first respondent submits that ground 1 of the grounds for judicial review raises no issue for judicial review; the Court agrees. The decision is dated 22 November 2013, and the application for judicial review was filed within time on 17 December 2013. Ground 1 is dismissed.

27. The first respondent submits that the applicant’s dissatisfaction with the decision is not a legitimate ground for judicial review; the Court again agrees. The ground seeks to review the merits. Ground 2 is dismissed. 

28. The third ground submits that the applicant has exceptional circumstances beyond the application lodged previously. The Court finds that the Tribunal considered the applicant’s submissions about his circumstances, including the issues with his migration agent. That appears on CB p.85.5.

29. Insofar as the applicant seeks to rely on material not put to the Tribunal, he is not able to do so. An applicant for judicial review is confined to material put before the Tribunal as referred to in SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 per McKerracher J at [27]:

    “An appeal from the Tribunal to the Federal Magistrates Court or an appeal to this Court is limited to review of jurisdictional error. Fresh evidence is not admissible unless it bears on some jurisdictional error. In MZXHY v Minister for Immigration and Citizenship [2007] FCA 622, Nicholson J stated at [8]:

    It is not open for an appellant to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal. Spender J in Servos v Repatriation Commission(1995) 56 FCR 377 at 380 determined the question of ‘... whether, and to what extent, an appellant for review pursuant to s 44 of the Administrative Appeals Tribunal Act1975 (Cth) can adduce evidence which was not before the tribunal at the time of its decision’. At 381 Spender J observed that appeals to the Court from the Administrative Appeals Tribunal ‘... are only on questions of law’. His Honour further held at 382 that the Court had no power to receive the fresh evidence: see also at 385. Marshall J in Ozberk v Minister for Immigration and Multicultural Affairs(1998) 79 FCR 249 at 254 approved Servos 56 FCR 377 in a migration law framework.”

30. Ground 3 is dismissed.

31. Ground 4 submits that there are High Court decisions in the applicant’s favour. The applicant has not put anything to the Court to support this ground. He failed to file written submissions, and has failed to appear. He has not identified any decisions that support his situation. Ground 4 is dismissed. 

32. In the applicant’s submissions to the Tribunal dated 19 April 2012 (CB p.48), he submits that he did not know that his migration agent had applied for a 485 visa, and that those documents were fraudulent (CB p.49.3). In that same written submission (at CB p.51.6), the applicant sought “one last chance to prove my eligibility to satisfy the 485 subclass criterion”. The inference is that the applicant seeks a subclass 485 visa. That is the subclass of visa named in the Application Form (CB p.1.2). The Court finds nothing to establish fraud by the applicant’s migration agent on the Tribunal, or on the applicant.

33. The application for judicial review is dismissed.

34. The Court orders that the applicant pay the first respondent’s costs of $3,000.00.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Turner

Associate: 

Date:  12 September 2014