FEDERAL COURT OF AUSTRALIA

Khan v Minister for Immigration and Border Protection [2018] FCAFC 85

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first 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

TRACEY J:

1    This appeal from the Federal Circuit Court (“the FCC”) raises questions relating to the construction of cl 485.223 of Sch 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). That clause provides one of the criteria for eligibility for a Skilled (Provisional) Temporary Graduate (Class VC, Subclass 485) visa. It provides:

485.223

When the application was made, it was accompanied by evidence that the applicant had applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority.

2    The appellant lodged an application for the visa on 15 March 2016. The Minister’s delegate refused the application on 16 May 2016 on the ground that the application had not been accompanied by evidence that the appellant had applied for a skills assessment.

3    It was not in dispute that, on 15 March 2016, the appellant had not applied for a skills assessment. He did not do so until 13 May 2016. That application was unsuccessful because his payment could not be processed and another application was made on 17 May 2016. A favourable assessment was made on 27 May 2016.

4    On 6 June 2016, the appellant sought review of the delegate’s decision in the Administrative Appeals Tribunal (“the Tribunal”). The hearing was conducted on 12 October 2016. On 17 October 2016, the Tribunal affirmed the delegate’s decision.

5    The applicant sought judicial review of the Tribunal’s decision in the FCC. He argued that the Tribunal had erred by failing to take into account the favourable skills assessment which he had provided to the Tribunal. He submitted that this failure on the part of the Tribunal had given rise to a denial of procedural fairness and a failure to have regard to a relevant consideration and that it was unreasonable. The FCC dismissed the application: see Khan v Minister for Immigration and Border Protection [2017] FCCA 2585.

6    The appellant invoked nine grounds in his notice of appeal to this Court. He alleged that the primary judge had erred by:

(a)    failing to distinguish Anand v Minister for Immigration and Citizenship (2013) 215 FCR 562; [2013] FCA 1050 (“Anand”) (ground 1);

(b)    failing to follow Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; [2010] HCA 8 (“Berenguel”) (ground 2);

(c)    failing to invoke the inherent jurisdiction and power of the FCC to dispense with the application of cl 487.223 of the Regulations in the interests of justice, to prevent injustice to the appellant when he was not at fault (ground 4);

(d)    failing to consider that cl 485.223 of the Regulations was inconsistent with ss 55, 56, 353, 357A and 359 of the Migration Act 1958 (Cth) (“the Act”) (ground 8); and

(e)    failing to issue writs of certiorari and mandamus in view of the merits and circumstances of the case (ground 9).

7    The other grounds claimed that the Tribunal had erred by:

(a)    refusing to accept the favourable skills assessment, which was unfair and absurd in the manner identified in Berenguel and unreasonable in the manner identified in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (“Li”) (ground 3);

(b)    failing to exercise its discretion pursuant to s 359 of the Act to receive and have regard to relevant information constituted by the favourable skills assessment (ground 5);

(c)    acting unreasonably by failing to act according to substantial justice and the merits of the case as required by s 353(b) of the Act when it refused to receive and have regard to the favourable skills assessment (ground 6); and

(d)    refusing to accept and have regard to the favourable skills assessment, which was unreasonable and constituted an improper exercise of power which went to its jurisdiction, having regard to s 353(a) of the Act, which provides that the Tribunal in reviewing a decision is not bound by technicalities, legal forms or rules of evidence (ground 7).

8    In his written submissions, and at the hearing of the appeal, the appellant focused on the proposition that the Tribunal had erred by failing to exercise its discretion to accept the favourable skills assessment that had been provided to it. The appellant submitted that this involved a misconstruction of cl 485.22 of the Regulations and a failure to exercise its powers having regard to ss 54, 55, 56, 349, 353, 357A and 359 of the Act. It was also said to be legally unreasonable in the sense identified in Li. If the appellant did not succeed on his construction argument, he submitted that cl 485.22 was inconsistent with provisions in the Act, in particular s 55 and, to that extent, “the Act must prevail”.

9    It is useful to begin by considering the correct construction of cl 485.223.

10    The primary Judge followed the decision of Katzmann J in Anand. That case involved the construction of cl 487.216 of Sch 2 of the Regulations which was, in many respects, similar to cl 485.223. It provided that:

487.216

The application is accompanied by evidence that:

(a)    the applicant; and

(b)    each person included in the application who is at least 16;

has applied for an Australian Federal Police check during the 12 months immediately before the day when the application is made.

11    The appellant in that case had applied for a police check by the time at which the visa application had been made, but had answered “no” when responding to the question on the visa application form which asked: “Have you … applied, in the last 12 months, to the Australian Federal Police for a check of criminal records?”

12    The Minister’s delegate refused the application because there was no evidence that he had applied for the check. Two days after the delegate had made the decision, the visa applicant’s agent had provided evidence of the existence of the Australian Federal Police clearance certificate. This occurred five months after the visa application had been made. On appeal to the Migration Review Tribunal, the Tribunal affirmed the delegate’s decision. Judicial review was sought in the Federal Magistrates Court. Relief was refused by the Federal Magistrate when he held that cl 487.216 required that evidence of the police check application had to be provided at the time of the lodging of the visa application.

13    The appeal to this Court from the Federal Magistrate’s decision was unsuccessful. Katzmann J took a broader view of the word “accompanied”, but, nonetheless, held that the appeal should be dismissed. Her Honour held at 568 [28] that:

… I am prepared to accept that evidence accompanying an application could be supplied after the application is lodged. Still, there must be some temporal connection with the application. Evidence supplied around the time of the application may be sufficient. I doubt, for example, if the accompanying evidence appeared in an annexure which through inadvertence had not been uploaded or attached to the application but which was forwarded a day or so later, that anyone would argue that the evidence did not accompany the application. It might even extend beyond that. Where, for example, an applicant indicated in his application or a document submitted with it that he would forward the evidence within the week and he did so, it might be said that the evidence accompanied the application. But the words “accompanied by” are not so elastic as to stretch to evidence submitted, as here, five months after the application was lodged and two days after the decision was made. Language cannot be stretched so far that it snaps (cf Wielgus v Removal Review Authority [1994] 1 NZLR 73 at 79). In contrast to the position in Berenguel the construction for which Mr Anand contended would compromise the purpose of the Regulations.

14    Her Honour took a benign view of the word “accompanied”. The stretching of the concept may give rise to difficulties in determining how far a departure from the temporal requirement may be permitted. There would seem to be no need to stretch the concept, given that an application for a visa may be delayed until the applicant has, in his or her possession, evidence that the skills assessment has been applied for. Moreover, a visa application not accompanied by the evidence may be withdrawn and a fresh application made, once the evidence becomes available.

15    The clause establishes an objective temporal test. Whether or not there is some flexibility in the test, nothing decided in Anand permits the temporal requirement to import notions of fairness so as to avoid what might otherwise be an apparently harsh outcome for the visa applicant. The test does not turn upon concepts of blameworthiness or deservedness. A visa application is either accompanied by the necessary evidence or it is not.

16    The test is objective. Clause 485.223 is one of a number of “time of application” criteria conditioning the grant of a skills visa. An obvious mischief addressed by the provision is to provide clarity to the visa applicant as to the person’s readiness to apply for the visa and the matters he or she needs to have done before he or she commences the visa application process.

17    The provision aims to ensure that a person who applies for a visa has applied for his or her skill assessment and is therefore ready and willing to undergo the assessment at the earliest opportunity. If the provision was not enacted in that form, a visa applicant might use the visa application process, including processes associated with merits review by the Tribunal, to expand the time in which he or she acquires the skills necessary to fulfil the substantive visa criterion. In that way, the Regulations facilitate efficient decision-making and guard against delay by visa applicants who are not ready at the time of the visa application to undergo the necessary assessments.

18    Responsibility for obtaining the evidence is that of the visa applicant, not the Minister. The Regulations give primacy to that consideration over personal considerations that might explain that the reason why a person has been unwilling or unable to obtain evidence of the assessment application is benign. The present case is on point. The appellant’s subjective reason for applying for the visa on the day that he did was that his student visa would expire on that day, and the expiry of the visa may have had the consequence that he could not apply for a new substantive visa without first leaving Australia. Nothing in the text, context or purpose of cl 485.223 contemplates considerations of that kind to give effect to the inquiry as to whether, objectively, the application was accompanied by the evidence. Ground 1 has not been made out.

19    The appellant’s reliance on Li is misconceived. Li concerned the limits of a discretionary power vested in the Tribunal as to whether or not to adjourn a hearing. The Tribunal refused to grant an adjournment so as to enable a visa applicant to obtain evidence that she fulfilled the substantive visa criteria that were required to be satisfied at the time of the Tribunal’s decision. The discretion to grant an adjournment, and so delay the time of the decision, is one that must be exercised reasonably in the sense explained by the High Court in that case. The requirement that an administrative decision-maker act reasonably applies to all of the Tribunal’s discretionary powers.

20    In the present case, however, the Tribunal did not have any discretion as to whether or not to apply the criterion in cl 485.223 to the appellant. Whether or not a visa application is accompanied by the necessary evidence may involve an evaluation of evidence but it does not involve the exercise of a discretion of the kind that would attract the principles in Li.

21    The Tribunal correctly construed cl 485.223 and correctly applied the provision to the facts before it. Having done so, there was no evidence that the appellant could provide so as to satisfy the Tribunal that the “time of application” criterion had been fulfilled. Evidence that he had subsequently applied for a skills assessment and subsequently obtained a favourable skills assessment could not assist him. The appellant’s complaint that the Tribunal had exercised its powers unreasonably amounted to a complaint that the law operated harshly in the circumstances of his case.

22    Even assuming that the law operated harshly in the appellant’s circumstances, it does not assist the appellant to establish jurisdictional error. If the law operated harshly in the appellant’s case, that is explained by his inability to apply for a skills assessment at an earlier time for reasons associated with the late completion of his studies. The law may operate harshly for the very reason that it gives primacy to considerations of administrative efficiency and the need for visa applicants to assume responsibility for putting in train external assessment processes before the visa application is made. Where that is not done and the visa application is unsuccessful, there is nothing to prevent a subsequent application being made. Whether or not the subsequent application may be subject to additional or more difficult criteria and so cause inconvenience or hardship is not the concern of the legislature. Ground 3 has not, therefore, succeeded.

23    Nor is assistance provided to the appellant by ss 54, 55 and 56 of the Act, on which he relies. Section 54 requires the Minister, when considering an application for a visa, to have regard to all of the information provided in the application. The delegate and the Tribunal did so in this case. The relevant information was that no application had been made, at that time, for a skills assessment. Section 55 of the Act provides that, until the Minister has made a decision on the application, an applicant can provide additional relevant information to which the Minister must have regard in making the decision. Evidence of the fact that the applicant had obtained a positive skills assessment after the application had been lodged would not be relevant information for the purposes of cl 485.223. Section 56 confers a discretion on the Minister to obtain further information which he or she considers relevant. This section has no application for the same reason that s 55 does not assist the appellant.

24    Some reliance was also placed in argument, by the appellant, on s 359 of the Act. That section empowers the Tribunal to get such information as it considers relevant and requires it to have regard to that information in making its decision. The Tribunal in the present case was aware that the appellant had obtained a favourable skills assessment after the visa application had been made. It did not consider that such information was relevant to the issue which it had to determine because of the construction it placed on cl 485.223. The information merely confirmed that the “accompanied by” criterion had not been satisfied. Ground 5, therefore, fails.

25    An appeal of the present kind is in the nature of a rehearing. In order to succeed, an appellant must demonstrate material error on the part of the FCC. In my view, no such error has been established on this appeal. Once it is accepted that the Minister’s delegate and the Tribunal correctly construed and applied cl 485.223, the other appeal grounds fall away.

26    Nevertheless, the other grounds can be dealt with in short measure. Ground 2 is to be rejected because of the observations of Charlesworth J, with which I agree. Ground 4 lacks merit because it is to be doubted that the FCC, as a statutory court, has inherent jurisdiction. Any power that the FCC has, pursuant to s 15 of the Federal Circuit Court of Australia Act 1999 (Cth) or otherwise, did not permit it to disregard the requirements of cl 485.223 of the Regulations. Grounds 6 and 7 are to be rejected because s 353 of the Act did not permit the Tribunal to ignore the condition imposed by cl 485.223. Ground 8 is not made out as the requirement imposed by cl 485.223 is not inconsistent with any of the statutory provisions identified by the appellant. Ground 9 does not succeed as there was no basis for the FCC to grant relief where the Tribunal had not erred in its application of cl 485.223.

27    I would dismiss the appeal and order that the appellant pay the Minister’s costs of the appeal.

Associate:

Dated:    1 June 2018

REASONS FOR JUDGMENT

CHARLESWORTH J:

28    I would agree that the appeal should be dismissed, for the reasons given by Tracey J. I would add the following.

29    The appellant relied on the decision of the High Court in the matter of Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; [2010] HCA 8. In that case, the High Court construed a regulation setting out the criteria for the grant of a Subclass 885 visa. The relevant regulation — which was premised with the heading “Time of Application Criteria” — bore some similarity to the regulation in issue in the appellant’s case. At 421 [17] of the judgment the High Court said:

Division 885.2 sets out primary criteria. Under the heading “885.21 Criteria to be satisfied at time of application” there appears the following:

885.213 Either:

(a)    the applicant’s nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupation, and the applicant has vocational English; or

(b)    the applicant has competent English.

30    The High Court continued:

By way of relevant contrast, clauses 885.214 and 885.215 require the applicant to be accompanied by evidence of an Australian Federal Police check and arrangements that the applicant had made to undergo a medical examination. There is no such requirement in respect of proof of compliance with the vocational English or competent English criterion.

31    The regulation at issue in the appellant’s case — that is, cl 485.223 — is not relevantly different from the two provisions that were contrasted by the High Court in that passage. The words “accompanied by”, the High Court found, at least implicitly, gave the necessary grammatical connection to the words “time of visa criterion”. It was that grammatical connection that was missing in relation to the regulation then under the Court’s consideration. It is for that reason that I consider the decision of the High Court in Berenguel affords no assistance to the appellant and, in fact, presents the appellant with some difficulty.

32    Nor does the decision in Berenguel set forth any principle to the effect that considerations of fairness or absurdity are to govern the assessment of whether or not a temporal requirement exists between the making of an application and the provision of evidence that a skills assessment had been applied for. I would accordingly join in orders dismissing the appeal.

Associate:

Dated:    1 June 2018

REASONS FOR JUDGMENT

DERRINGTON J:

33    I agree the appeal should be dismissed, for the reasons which have been given by Tracey J, and also I agree with the observations of Charlesworth J.

Associate:

Dated:    1 June 2018