Thapa v MICMSMA
[2021] FCCA 686
•12 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Thapa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 686
File number(s): SYG 3328 of 2019 Judgment of: JUDGE HUMPHREYS Date of judgment: 12 April 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – subclass 189 (Points Tested Stream) visa – whether the Tribunal fell into jurisdictional error in misconstruing and misapplying cl 189.222(1) of the Migration Regulations 1994 by wrongly interpreting the expression “at the time of invitation to apply for the visa” – jurisdictional error made out – the application is upheld. Legislation: Migration Act 1958 (Cth), ss 55, 495A.
Migration Regulations 1994 (Cth), cll 189.1, 189.2, 189.221, 189.222, 189.223.
Cases cited: Berenguel v Minister for Immigration and Citizenship [2010] HCA 8.
Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; 162 CLR 24.
Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32.
Number of paragraphs: 31 Date of last submission/s: 1 April 2021 Date of hearing: 1 April 2021 Place: Parramatta Counsel for the Applicant: Mr Gormly Counsel for the Respondents: Mr Bevan ORDERS
SYG 3328 of 2019 BETWEEN: SAUGAT THAPA
First Applicant
SHRIJU ARYAL
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
12 APRIL 2021
THE COURT ORDERS THAT:
1.The application is upheld.
2.An order that the decision of the Administrative Appeals Tribunal be quashed.
3.A writ of mandamus directed to the Administrative Appeals Tribunal requiring it to determine the applicant’s application according to law.
4.The first respondent is to pay the first and second applicant’s costs fixed in the amount of $7,467.00.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicants are husband and wife. Both are citizens of Nepal. The first applicant (“the applicant”) sought permanent residence in Australia to practice as an accountant, having obtained a Masters degree in Professional Accounting in Australia in March of 2015. In addition, the applicant holds a Masters of Business Administration obtained from Kathmandu University.
By way of letter, dated 11 December 2018, the then Minister for Home affairs invited the applicant to apply for a subclass 189 (Points Tested Stream) visa (“189 visa”) for the nominated occupation of Accountant (General).
That invitation was valid for 60 days after the date of the letter and expired on 9 February 2019.
On 12 March 2019, after the expiry of the invitation, a Departmental officer told the applicant’s Migration Agent that the skills assessment which had been provided by Chartered Accountants Australia and New Zealand to support the applicant’s application, was not sufficient. The applicant determined not to withdraw the application.
On 20 March 2019, a delegate of the Minister for Home Affairs (“the delegate”) decided to refuse the application for a 189 visa on the basis of the lack of a valid Skills Assessment that met the requirements of Schedule 2 of cl 189.222 of the Migration Regulations 1994 (Cth) (“the Regulations”) as “at the time of the invitation” the 2015 Skills Assessment was no longer valid and the 2019 Skills Assessment had issued “after the date the applicant was invited to apply for the visa”.
The applicant’s sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 20 November 2019, the Tribunal affirmed the decision not to grant the applicant’s their visas.
The applicant’s now seek judicial review of the Tribunal decision.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The Tribunal’s decision is relatively short.
At paragraph 13 of its decision, the Tribunal acknowledged that the applicant had two skills assessments, both of which found him suitable for his nominated skilled occupation of Accountant (General). The first skills assessment was dated 21 September 2015. The second was dated 10 January 2019.
At paragraph 14 of its decision, the Tribunal found that there was no expiry date of validity of the first skills assessment dated 21 September 2015. The Tribunal then applied cl 189.222(d) of the Regulations to the assessment, finding that three years applied. It therefore expired on 21 September 2018. The Tribunal then found that it did not satisfy the criteria to be valid as at the time of the invitation of 11 December 2018. At paragraph 15 of its decision, the Tribunal found the second skills assessment, which was dated 10 January 2019, although it found the applicant suitable for the nominated skilled occupation, it was not “available” as at the time of the invitation of 11 December 2018.
The Tribunal noted the applicant relied upon Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 (“Waensila”) and Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 (“Berenguel”). The Tribunal found that Berenguel has not been applied in this context. The Tribunal found that the skills assessment did not satisfy the criteria of “at the time of the invitation to apply” and the relevant skills assessment must exist at the time of the invitation to apply, being 11 December 2018.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review now relied upon are set out in an Amended Initiating Application filed with the Court on 17 November 2020. They are as follows:
Ground one
The decision of the second respondent Tribunal was affected by jurisdictional error in that the Tribunal misconstrued and misapplied cl 189.222(1) of the Migration Regulations 1994 by wrongly interpreting the expression “at the time of invitation to apply for the visa” to mean the date the Minister issued the invitation rather than the period within which the invitation was valid and/or open.
Particulars
•It was a primary criterion under cl 189.221 for the grant of a Subclass 189 visa that “The applicant was invited, in writing, by the Minister to apply for the visa”.
•Under the power provided by s 495A of the Migration Act 1958, the first respondent Minister used a computer program to invite the first applicant to apply for a Subclass 189 visa for the occupation of Accountant (General) – (the SkillSelect invitation).
•The SkillSelect invitation was dated 11 December 2018 and was expressed to be valid for 60 calendar days “from the date of this letter” (the invitation period). The invitation said that “It enables you to satisfy one of the requirements for making a valid application for a 189 (PTS) visa provided the application is lodged on or before 09 Feb 2019”(original emphasis).
•It was a primary criterion under cl 189.222(1)(a) for the grant of the subclass 189 visa that:
•“At the time of invitation to apply for this visa:
•the relevant assessing authority has assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation…”…
•During the invitation period the first applicant obtained and submitted a further skills assessment from Chartered Accountants (CA) as the first skills assessment from CA he had declared in his original Expression of Interest (“EOI”) was over three years old by the time the invitation period commenced.
•The Tribunal misconstrued “at time of invitation to apply for the visa” in cl 189.222(1)(a) to mean the date of the commencement of the invitation period, ie 11 December 2018, and accordingly wrongly found that the skills assessment requirement under cl 189.221(1)(a) was not met as the second CA skills assessment did not exist on 11 December 2018.
•As a result of this misinterpretation the Tribunal found the first applicant did not satisfy cl 189.222(1) and accordingly refused to grant the applicant’s visas.
•Had the Tribunal correctly construed cl 189.222(1)(a) it would have accepted the second CA skills assessment satisfied that clause as that assessment came into existence during the invitation period, ie between 11 December 2018 and 9 February 2019.
CONSIDERATION
The facts in this matter are not in dispute. As at the date of the invitation to apply for a 189 visa, the first applicant did not have a current skills assessment, it having expired some 2 months previously. As at the date the applicant submitted his application, bearing in mind he was allowed 60 days to do so, he had obtained a current skills assessment. This case revolves around the wording of cl 189.222 of the Regulations and the words “at the time of the invitation”.
The relevant extract of the Regulations is as follows:
Subclass 189—Skilled—Independent
189.1—Interpretation
Note 1:For registered course, relevant assessing authority and skilled occupation: see regulation 1.03.
Note 2:Regulation 1.03 also provides that competent English has the meaning set out in regulation 1.15C.
Note 3: There are no interpretation provisions specific to this Part.
189.2—Primary criteria
Note:The primary criteria for the grant of a Subclass 189 visa include criteria set out in streams.
For a Subclass 189 visa in the Points‑tested stream, the criteria in Subdivisions 189.21 and 189.22 are the primary criteria.
For a Subclass 189 visa in the New Zealand stream, the criteria in Subdivisions 189.21 and 189.23 are the primary criteria.
The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a Subclass 189 visa need satisfy only the secondary criteria in Division 189.3.
All criteria must be satisfied at the time a decision is made on the application.
189.221
The applicant was invited, in writing, by the Minister to apply for the visa.
189.222
(1) At the time of invitation to apply for the visa:
(a) the relevant assessing authority had assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation; and
(b) the assessment was not for a Subclass 485 (Temporary Graduate) visa; and
(c) if the assessment specified a period during which the assessment was valid, and the period did not end more than 3 years after the date of the assessment—the period had not ended; and
(d) if paragraph (c) did not apply—not more than 3 years had passed since the date of the assessment.
(2)If the assessment was made 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 (emphasis added).
The Court has carefully considered the effect of the correct construction of cl 189.222 of the Regulations with regard to the final sentence of the Notes under the heading ‘Primary Criteria’ of cl 189.2 of the Regulations which states that “All criteria must be satisfied at the time a decision is made on the application”. In this case, all the criteria were satisfied in the sense that the applicant had met the requirements of cl 189.222(1)(a) to (d) of the Regulations following the submission of his updated skills assessment.
Counsel for the applicant submits that the relevant text is not “date of invitation” but “time of invitation”. Counsel for the applicant notes that the latter words are used elsewhere in cl 189.222 of the Regulations and as a result, a differentiation between the meaning of the words can be drawn. Further, the use of the term “to apply for the visa” allows a time for compliance with the requirements of clause 189.222 of the Regulations.
Counsel for the first respondent notes that the invitation itself avers to the issue that skills assessments may have expired in that it advises “most skilled visas have requirements that must be satisfied at the date of invitation for a visa application to succeed”.
Counsel for the applicant notes that the only course open to the applicant in his circumstances would have been to withdraw his EOI, and wait for a further EOI to be given to him at some uncertain date in the future, if at all. At the same time, the applicant would be required to maintain the currency of his skills assessment.
Counsel for the applicant relied, in particular, on two cases, the first being Berenguel per French CJ, Gummow and Crennan JJ. That case concerned the grant of a subclass 885 (Skilled – Independent) visa. The issue turned on the relevant construction of clause 885.213 of the Regulations as to the relevant time that was required for the applicant to show that he had appropriate vocational English. The applicant lodged his application but was unable to book an English language test prior to lodging his application. The applicant later undertook an English language test successfully and then provided that to the Department.
The High Court noted, at paragraph 17, that certain requirements, such as evidence of an Australian Federal Police check and arrangements that the applicant had made to undergo a medical examination were clearly required to be provided “at the time of the application”. It concluded that there was no such requirement in respect of a proof of compliance with the vocational English or competent English criterion.
At paragraphs 24 to 26, the following was said:
24. The evident purpose of the alternative criteria in cl 885.213 is to ensure that, when the Minister or delegates decides upon the application for a visa, the applicant will have demonstrated recent competency in the English language. It does not follow that the criterion can only be satisfied by evidence provided to the Minister at the time of submitting the application. In this connection it is useful to contrast the requirements of cl 885.213 and cl 885.214 and 885.215.
25. The requirement in reg 1.15B that the requisite test has been conducted “not more than two years before the day on which the application is lodged was lodged” is susceptible of the construction that the test was conducted no earlier than two years before the application was lodged. So construed, it does not require that the test has to be conducted before the application is lodged. That requirement can only be imposed by some direct operation of the undefined heading “Criteria to be satisfied at time of application”.
26…. Moreover, in this case, the construction for which the Minister contends leads to such plain unfairness and absurdity that it is not to be preferred. The alternative construction for which the plaintiff contends does not compromise the purpose of the Migration Regulations. There is nothing to prevent relevant information being submitted to the Minister after lodgement of the application… The Act specifically provides that the Minister may have regard to up-to-date information and, where the purpose of the relevant criterion is to ensure that the standard of English language competency is recently ascertained, a construction which would deprive him of the most recent information seems to be antithetical to that purpose.
Counsel for the applicant also placed reliance on the decision of the Full Federal Court in Waensila. That judgement concerned whether or not the Minister could consider compelling reasons which had arisen, post the submission of an application for a protection visa, and, in particular, the criteria under cl 820.211(2)(d) (ii) of the Regulations. At paragraph 14, Dowsett J quoted the following from Mason J in Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; 162 CLR 24 at [45], that, in the ordinary case, a decision maker is required to take account of information before him or her:
It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.
The Full Federal Court went on to find that the Minister was required to consider any compelling circumstances which had arisen subsequent to the lodgement of the application for a protection visa.
Reference in that case is also made to s 55 of the Migration Act 1958 (Cth) (“the Act”), which reads as follows:
55(1) Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.
(2) Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information.
Counsel for the first respondent contends that, at the level of statutory construction, “the time of invitation to apply”, speaks to a time at which the invitation is given to the prospective applicant. In this way, the “time of invitation” is fixed by the date on which the invitation under cl 189.221 of the Regulations is made. This is distinct from the subsequent period in which the application may be lodged after making the invitation. Counsel for the first respondent submits that, by reference to clause 189.222(a) of the Regulations, it is clear that it is assumed a valid skills assessment with the term “specified period of validity” supports the construction that the words “at the time of invitation to apply” focuses attention on the state of affairs as at the date of invitation.
In relation to any prospective unfairness, it was submitted that the prospective applicants’, who have submitted an EOI, can suspend such an EOI. The applicants’ can then return the EOI back to a “submitted” status once they have attained a new skills assessment and can again satisfy the visa criteria. However, after an invitation is issued, the applicant can no longer edit the content of the EOI. This is because the EOI’s are locked from the date the applicants are invited to apply for a visa, as the invitation is automatically issued based on the number of points awarded, and the date of effect listed, in accordance with the prospective applicants’ claims.
It is submitted the applicant’s construction requires the Court to read into the provision, words that are not there, and, furthermore, give the plain and ordinary meaning to the words that are there. There is no structural, textual or linguistic support for the construction advanced by the applicant. The Court notes that there is no definition of the words the subject of the litigation. The Explanatory Statement, Select Legislative Instrument NO. 82, 2014[1] does not provide any clarity in this regard.
[1] Minister for Immigration and Border Protection, Explanatory Statement –Select Legislative Instrument – Migration Act 1958 – Australian Citizenship Act 2007 - Migration Legislation Amendment (2014 Measure No. 1) Regulations 2014 [N0 82] 2014.
Given that the invitation to apply for the visa allowed a 60 day period from the date of the invitation, it would seem to be a strange result that the applicant was unable to provide additional information which showed that the applicant met all the criteria for the grant of a visa. The particular unfairness in this matter is that the relevant skills assessment granted to the applicant, initially in 2015, did not specify a date of expiry. It was only as a result of the operation of cl 189.222 (d) of the Regulations that a three-year period was imported into the validity of the relevant skills assessment.
The Court is satisfied that, in these circumstances, the construction which the first respondent contends leads to such plain unfairness and absurdity that it is not to be preferred. The Court adopts the words of the High Court in Berenguel, quoted above, that the alternative construction for which the plaintiff contends does not compromise the purpose of the Regulations. Further, this is consistent with the provisions of s 55 of the Act, which makes it explicitly clear that the Minister can be provided with further information up until the date of the Minister’s decision. This is precisely what happened in this case.
Clear words need to be used to indicate the relevant criteria needed to be satisfied, as at the “date” of the invitation, rather than in this case, during the period of the “time” of the invitation, which was specified as 60 days from the date of the letter.
CONCLUSION
The application is upheld and the Court grants the relief sought in the Initiating Application.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 12 April 2021
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