Thalagala Achchige v Minister for Immigration and Border Protection
[2017] FCA 886
•3 August 2017
FEDERAL COURT OF AUSTRALIA
Thalagala Achchige v Minister for Immigration and Border Protection [2017] FCA 886
Appeal from: Achchige & Anor v Minister for Immigration & Anor [2017] FCCA 675 File number(s): VID 191 of 2017 Judge(s): DERRINGTON J Date of judgment: 3 August 2017 Catchwords: MIGRATION – appeal from application for judicial review of refusal to grant a Temporary Graduate (Class VC, Subclass 485) visa – appellant failed to satisfy required criterion Legislation: Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.224, cl 485.311
Cases cited: Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Date of hearing: 3 August 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 27 Counsel for the Appellants: Mr Gordon Counsel for the Respondents: Mr P Hosking Solicitor for the Respondents: Clayton Utz ORDERS
VID 191 of 2017 BETWEEN: MADURI ANUSHA THALAGALA THALAGALA ACHCHIGE
First Appellant
DON GAYAN WANIGASEKARA DISANAYAKA
Second Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
DERRINGTON J
DATE OF ORDER:
3 AUGUST 2017
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellants pay the respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DERRINGTON J:
This is an appeal from a decision of the Federal Circuit Court of Australia given on 15 February 2017, which dismissed an application for judicial review of a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal) made on 30 June 2014. The decision of Tribunal affirmed a decision of the Delegate of the Minister for Immigration and Border Protection (the Delegate) to refuse to grant the appellants’ Temporary Graduate (Class VC, Subclass 485) visas (the visas).
As is apparent from the departmental form entitled “Application for Temporary Graduate or Skilled Regional Visa”, the appellants made applications for visas pursuant to the graduate work stream process. The application was made on 29 August 2013. The first appellant sought a skilled graduate subclass 485 visa which identified her nominated skills occupation as being “welfare centre manager". She sought the grant of a visa on the basis that she satisfied (or would satisfy) the primary criteria for the grant of such a visa being:
The skills of the applicant for the applicant’s nominated skills occupation have been assessed by the relevant assessing authority as suitable for that occupation.
In the application form under the heading “Applicant skills assessment” the following statements were made by the Department:
“IMPORTANT NOTE:
You must provide evidence of a suitable skills assessment from the relevant assessing authority, or evidence that you have booked to undergo a skills assessment with the relevant assessing authority when you lodge this application.
Failure to do so may result in you being unable to satisfy the requirements for lodging an application or being unable to satisfy the criteria for this visa.
Beneath that statement the first appellant inserted details of an assessment which had been undertaken of her skills. The skilled occupation nominated by the first appellant was one for which the relevant assessing authority was the Vocational Education Training and Assessment Services, which is known by the acronym, “VETASSESS”. Whilst it appears that the first appellant had, in fact, undertaken a skills assessment by VETASSESS on 28 August 2013, that organisation determined that the first appellant did not possess the relevant skills suitable for her nominated skilled occupation. In other words the necessary foundation for the grant of the visa did not exist.
The second appellant is the husband of the first appellant. He applied for a visa on the basis that he was a member of the family unit of the appellant. He asserted, therefore, that he satisfied the secondary criteria for the grant of the visa. It follows that the granting of a visa to the second appellant was dependent upon a visa being granted to the first appellant.
The Department wrote to the first appellant on 21 November 2013, requesting that the first appellant provide evidence in relation to her skills assessment and, in particular, that she provide “a certified copy of the skills assessment issued by the relevant skills assessment body”. The first appellant was not able to provide a copy of an assessment which showed that she possessed suitable skills for her nominated occupation and she did not respond to this request by the Department.
The Delegate determined on 27 March 2014 not to grant the appellants the visas which they sought. She found that the first appellant had not provided evidence that her skills had been assessed by a relevant assessing authority as being suitable for her nominated skilled occupation. The Delegate made it clear in her reasons that because the required evidence to show that the first appellant’s skills had been assessed as suitable for the nominated occupation had not been provided, the first appellant had not met the requirements of cl 485.224 of Sch 2 of the Migration Regulations 1994 (Cth) (Regulations). That had the necessary consequence that the second appellant had not met the requirements of cl 485.311 of Sch 2 of the Regulations. Accordingly the Delegate refused to grant either of the visas sought by the appellants.
It should be noted that, absent the satisfaction of the skills assessment criteria, the Delegate had no discretion to grant the visas for which the appellants had applied. Indeed, under s 65 of the Migration Act 1958 (Cth), the decision maker has no discretion in relation to the granting or refusal of the visas covered by that section. That was made clear by the High Court in Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at 306 [41] where it said:
… However, s 65(1) provides that, if the minister is satisfied that the criteria prescribed by the Act and regulations for a particular class of visa are satisfied, that the grant of a visa is not prevented by the Act or other Commonwealth law, and that the application fee has been paid, the minister “is to grant the visa” and, if not so satisfied, “is to refuse to grant the visa”. Thus, although the minister's satisfaction (or, in the case of the tribunal, its satisfaction) is still required, s 65(1) imposes an obligation to grant a visa, as distinct from conferring a power involving the exercise of a discretion. The satisfaction that is required is a component of the condition precedent to the discharge of that obligation.
The appellants sought review of the Delegate’s decision by the Tribunal. On 15 May 2014, being prior to the hearing before the Tribunal, the appellants were notified in writing that they had failed to provide any evidence of the relevant assessing authority having assessed the first appellant’s skills as suitable for her nominated occupation. The Tribunal requested that such evidence be provided. The Tribunal noted that if the appellants were unable to provide the relevant evidence the Tribunal would require good reason to grant them additional time to obtain it.
At the hearing before the Tribunal on 13 June 2014, the first appellant advised that her application for a skills assessment by VETASSESS had been unsuccessful. However, the first appellant indicated that she hoped to obtain sponsorship for a visa in the future or that her husband hoped to gain such sponsorship. It appears that the Tribunal adjourned the hearing to allow the applicant additional time in which to obtain evidence that her skills had been assessed as suitable, however, no further evidence was provided.
On 30 June 2014 the Tribunal affirmed the Delegate’s decision on the basis that the first appellant’s skills had not been assessed by a relevant assessing authority as being suitable for her nominated skilled occupation with the consequence that the first appellant had failed to establish the requirements of cl 485.224 of Sch 2 of the Regulations. The Tribunal also found that the second appellant had not met the requirements of cl 485.311 of those Regulations.
The appellants applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. The grounds relied upon by the appellants were identified at paragraph [10] of the decision of the learned judge at first instance in the following terms:
1.Migration Review Tribunal erred in law when exercising its discretion to affirm the decision not to grant the applicant subclass 185 visa in that it did not regard to all the relevant circumstances, including department’s policy guidelines and Migration Regulations 1994, specially part 485 of Sch 2.
2.Migration Review Tribunal erred in law in failing to consider all the circumstances of the applicant and her partner.
At paragraph [12] of her Honour’s reasoning, the learned judge identified the pith and substance of the submissions made to her on behalf of the appellants:
12. I clarified with Mr Gordon [who was representing the appellants] whether the argument of the Applicants was that, although the Applicant conceded and does not dispute that she did not satisfy the criteria she was required to satisfy under sub-cl.485.224(1) of sch.2 to the Regulations, the Tribunal had reposed in it a discretion and had erred in not considering the circumstances of the Applicant, and that error amounted to jurisdictional error. Mr Gordon confirmed that this was the gist of the Applicant’s submission.
The judge at first instance held that the application for judicial review did not give rise to any jurisdictional error. It was identified that if the Tribunal was not satisfied that the criteria necessary for the granting of the relevant visa were met then, as stated under subs 65(1)(b) of the Act, the Tribunal was required to refuse to grant the visa (at [14] of the reasons). As the learned judge identified, there is no discretion to grant a visa reposed in the decision maker, whether that be a delegate or a tribunal, where the primary criteria are not satisfied. The only question was, as the Tribunal had noted, whether there was evidence before it that the first appellant had been assessed by the relevant assessment authority that she had the relevant skills. At the hearing before the Tribunal the first appellant acknowledged that she did not have that assessment.
The learned judge recognised that in the circumstances, the only decision which the Tribunal could have made was to refuse to grant the visa. The Tribunal had no discretion reposed in it once it was satisfied that the appellant did not meet those criteria.
Consideration
Before the Court today the appellants were represented by Mr Gordon of Counsel who had appeared for them before the Federal Circuit Court. Mr Gordon advanced an argument to the effect that the appellants were denied natural justice in the course of the hearing before the Tribunal because they had not been told that if they did not produce evidence of a suitable skills assessment, the first appellant would not be entitled to the grant of a visa.
Mr Hosking for the Minister submitted that the extent of the obligations of the decision maker to identify the nature of the issues which are relevant to it were set out by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. There the High Court identified that the Tribunal was to inform those who come before it of the issues which would be relevant to its exercise of power. That said, the Court also noted that, in the absence of an indication to the contrary, an applicant before the Tribunal is entitled to consider that the issues which were dispositive of the matter before the original decision maker are to be the ones which are relevant to the determination of the Tribunal. In this case the only issue which was relevant to the determination of the Tribunal was whether or not the first appellant had satisfied the requirement of showing that her skills had been assessed as suitable. That was the only issue relevant to the Delegate’s determination and the appellants were entitled to consider that it was the issue which would be relevant to the Tribunal’s determination and it was.
As Mr Hosking, Counsel for the Minister, identified, in the circumstances of this case there was more than enough to show that the appellants had been informed of the issue which was of concern to the Tribunal. He pointed to the following:
(a)That it was clearly identified in the Application Form that evidence be provided that the first appellant’s skills for her nominated occupation had been assessed as suitable.
(b)Prior to the Delegate making her decision, the first appellant had been advised that it was necessary to provide a certified copy of the skills assessment by the relevant body.
(c)The decision of the Delegate identified in pellucid terms that the reason why the visa was not granted was because the first appellant had not provided any evidence that her skills had been assessed as suitable by the relevant authority.
(d)Prior to the hearing before the Tribunal, the first appellant was sent a letter from the Tribunal identifying that she had failed to provide evidence that her skills had been assessed as suitable. That letter specifically identified that the decision of the Delegate set out the reasons why the appellant did not meet the criteria for the visa.
(e)During the course of the hearing the Tribunal allowed the first appellant additional time in which to provided evidence of the assessment of her skills.
The only issue before the Tribunal was whether there was evidence that the first appellant had adduced evidence that her skills had been assessed as suitable. The appellants had been informed on numerous occasions of the importance of that issue and had been given repeated opportunities to adduce such evidence. Whilst it may be that they were not expressly informed that the failure to provide that information would result in their application for visas being rejected that was, most certainly, implicit in everything that they had been told. Indeed, it was the sole ground of the decision of the Delegate in respect of which the appellant sought review by the Tribunal.
There is nothing in the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 which would require the Tribunal to inform the appellants of the consequences, or possible consequences, of their failure to establish any particular matter. However, even if that obligation did exist, it would have been satisfied in this case given that the essentiality of the evidence identified by the Tribunal had been re-enforced on a number of occasions and, in particular, by the Tribunal.
In this matter the Tribunal fulfilled its obligation to inform the appellants of the issues which were relevant to its determination and no failure of natural justice has been shown.
The appellants have pointed to no error in the decision of the learned trial judge. Indeed, her Honour’s decision is correct. Neither the Minister by his Delegate, nor the Tribunal, were entitled to grant the visa in the absence of their satisfaction that the appellants met the criteria contained in Sch 2 of the Regulations. In the case of the first appellant that is the criteria contained in cl 485.224 of Sch 2 to the Regulations and, in the case of the second appellant, it is the requirements of cl 485.311 of Sch 2 of the Regulations.
It is not contested before this Ccourt that the first appellant did not satisfy the requirements of subcl 485.224(1) of Sch 2 of the Regulations. Indeed, the first appellant’s admission before the Tribunal that her application for a skills assessment had been unsuccessful is determinative of this. Given her inability to satisfy this criterion, there was no error by the Minister or the Tribunal in refusing to grant the visa. Indeed, the refusal of the visa was, as the trial judge correctly identified, the only course open to the decision maker.
As the first appellant could not satisfy the requirements of Sch 2 to the Regulations in respect of her visa, the second appellant could not meet the requirements of cl 485.311 of Sch 2 to the Regulations.
In the above circumstances no jurisdictional error has been shown by the appellants to exist in relation to the decision of the Tribunal and no error has been disclosed in the reasons of the judge below.
Consequently, the appeal must be dismissed.
It is accepted by the appellants that costs should follow the event and accordingly, the appellants are to pay the respondent’s costs of the appeal.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Derrington. Associate:
Dated: 3 August 2017