FEDERAL COURT OF AUSTRALIA

Sudan v Minister for Immigration and Border Protection [2015] FCA 90

THE COURT ORDERS THAT:

1.    The Appeal is 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 (Cth).

REASONS FOR JUDGMENT

INTRODUCTION

1    This is an appeal from orders of the Federal Circuit Court of Australia (FCC) dismissing an application for judicial review of a decision of the Migration Review Tribunal (MRT): Sudan v Minister for Immigration [2014] FCCA 2136. The MRT affirmed a decision of a delegate of the first respondent (Minister) not to grant the appellant a Skilled (Provisional) (Class VC) subclass 485 (Skilled – Graduate) visa (visa), pursuant to s 65 of the Migration Act 1958 (Cth) (Act).

BACKGROUND

2    The appellant applied for the visa on 2 March 2011. At the relevant time, a mandatory requirement for the visa was that the skills of the appellant for the appellant’s nominated skilled occupation had been assessed by the relevant assessing authority as suitable for that occupation (Skills Assessment): cl 485.221(1) of Sch 2 of the Migration Regulations 1994 (Cth) (Regulations).

3    The appellant’s nominated skilled occupation was “Cook”, and the relevant assessing authority was Trades Recognition Australia (TRA). In his application, the appellant recorded that a Skills Assessment had been undertaken on 28 February 2011, and provided the reference/receipt number “TRA11/9992​77368”.

4    On 10 February 2012, the Minister wrote to the appellant requesting more information. In particular, the Minister requested a Skills Assessment for the appellant’s nominated occupation. The appellant was directed to respond to the request within 28 days (by 9 March 2012). The appellant did not respond, and on 4 April 2012, the Minister refused to grant the visa as the Minister had not received any evidence that the appellant had completed a Skills Assessment, and therefore the appellant did not meet the requirements for the visa.

REVIEW BEFORE THE MRT

5    On 23 April 2012, the appellant applied to the MRT for review of the Minister’s decision. The application was accompanied by a signed written statement:

I came to Australia on 27th Feb 2007 on Student visa ‘573 Subclass’ to study my education in “Holmes Institute”, Melbourne. Once I have finished, I went to many lawyers & Migration agents to discuss the issue “whether I am eligible for further stay”, this was very confusable. After many visits I have concluded myself to get services of one consultancy “Jasmeet singh”, I have submitted all documentation to that organisation which I had thought “I was eligible for work permit”, they have lodged the visa and gave me one reference number and I was told to check through Immigration website for status of my application. I was not aware of anything what was happening until I have got refusal from DIAC. I don’t even know that “my lodged visa application was 485 subclass application”; I have spent all time blindly in Australia since my application lodged. I have been to my home country and come back, then after I have heard news from friends that “work visa’s being refused by DIAC”, that was on the basis of fraudulent documents been submitted to DIAC for 485 applications. After then I have consulted many lawyers to discuss about my application, there wasn’t any conclusion found. However, I have received letter from DIAC that “I have to submit the skills assessment to satisfy the 485 subclass criterion”, that time I have been given 28 days time period to submit the documents. I went my lawyer to discuss the case but unfortunate thing was “office was shut down by DIAC and reason was unknown”, even I have tried to ring him on the phone to discuss about my application refusal, could not get him on the phone either email. After couple days of search, I came to know that my lawyer has left the Australia for ever. I was hapless, 28 days time period was lapsed and on ‘4th April 2012’ my visa got refusal from DIAC.

Claims to be considered sympathetically by MRT as followed below:-

1)     I have submitted all documents to my lawyer “Jasmmet singh” on ‘17th February 2011’.

2)    I have paid service fee for my application processing.

3)     Despite my lack of knowledge, I have believed my lawyer without any doubt.

4)     I was dreaming that “My work visa is going to be approved soon”.

5)     Application has been lodged with out of my knowledge and without my consent.

6)    I haven’t been told by my lawyer “which subclass would be applied on my eligibility”.

7)    I was totally innocent and became victim of third party misguidance.

8)     However, I had been eligible at the time of my 485 subclass application, as documents submitted to my lawyer.

9)    My volunteer experience as a cook and IELTS have been submitted to my lawyer, these were genuine and original, now I have not been able to collect them from lawyer due to his flee.

10)    I have completed my Diploma of Hospitality and certificate III in commercial cookery in ‘Holmes Institute’ successfully.

11)    I never had single remark until this situation happened to me.

12)    I will provide all relevant documents to MRT which will satisfy my 485 subclass criterion for visa grant.

13)     I am requesting MRT to consider this “I have been cheated by third party” as compassionate and compelling reason how have not been able to submit the skill assessment to DIAC.

14)     Trades recognition of Australia (TRA) easily takes up to three months for processing. This was not possible within 28 days time period

15)    I never had an intention to give false documents to DIAC; DIAC even has not mentioned in the visa refusal decision record that “applicant has submitted bogus documents”.

16)    Every single document provided to DIAC and my lawyer was genuine and authentic.

17)     This was all happened due to my lawyer negligent behaviour.

Hence, I am imploring the MRT officials to accept my claims and give me natural justice on the basis of “victim of third party mistake”. And I am imploring MRT official to give me one last chance to prove my eligibility to satisfy the 485 subclass criterion, as I am on the job to collect the evidence and proofs of my documents. Please don’t hesitate to contact me if there is any information required regard my MRT application.

(Emphasis added.)

6    On 2 July 2013, the MRT wrote to the appellant, care of his representative/migration agent, noting that a Skills Assessment was a requirement for the grant of the visa. The MRT recorded that there was no evidence of a Skills Assessment before it and invited the appellant to provide that evidence by 1 August 2013. If the appellant could not provide that information, he was requested to provide evidence that he had applied for the Skills Assessment or contact the MRT by that date. The appellant did not respond.

7    On 3 October 2013, the MRT wrote to the appellant, care of his representative/migration agent, inviting the appellant to comment on, or respond to, his failure to submit evidence of a Skills Assessment, and invited him to provide that evidence, by 28 October 2013. The MRT explained that the evidence of a Skills Assessment was a requirement for the visa, and that there was no evidence before the MRT that a Skills Assessment had been completed. The MRT advised that if it did not receive a response or the evidence within that time, it might find that the appellant did not meet the requirements of cl 485.221 of Sch 2 of the Regulations and affirm the decision under review. Further, the MRT advised that it may make a decision on the review without taking any further action to obtain his views on the information or to obtain the information. It advised that the appellant could ask for an extension of time. Again, the appellant did not respond. The MRT found that the appellant had lost his right to appear before it.

8    On 25 November 2013, the MRT affirmed the decision not to grant the visa on the basis that the appellant’s skills had not been assessed and therefore he did not meet the requirements of the visa. In the MRT’s view, the appellant had had sufficient time to take steps to satisfy the regulatory criteria, and it was not required to defer its decision making any further to allow him additional time in which to obtain the required Skills Assessment. The MRT noted that the appellant “has been aware of the basis for the refusal of his subclass 485 visa application for approximately 19 months and that the [MRT] has issued two invitations to him on 2 July 2013 and 3 October 2013 to do so”.

PROCEEDINGS BEFORE THE FEDERAL CIRCUIT COURT

9    On 17 December 2013, the appellant filed an application for judicial review with the FCC. His grounds of application were:

1.    S.477, Judicial review can be lodged within 35 days after [MRT] review has been finalised

2.    I am not happy with [MRT] 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

10    On 5 March 2014, by consent of the parties, a show cause hearing was dispensed with and the matter was listed for final hearing on 4 September 2014. Also, by consent, the appellant was ordered to file and serve an amended application with proper particulars of the grounds of the application, a supplementary court book (if any) and written submissions. The Minister was also ordered to file and serve written submissions.

11    On 10 July 2014, parties were advised that the date for the hearing had been changed to 25 August 2014. On 22 August 2014, the appellant faxed a medical certificate to the FCC. The medical certificate stated that the appellant was “suffering from a medical condition” and was unfit to attend his usual occupation from 22 August 2014 to 29 August 2014 inclusive.

12    On 22 August 2014, at 1:53pm the FCC sent an email to the appellant, copying the solicitors for the Minister. The body of the email stated:

I refer to the attached medical certificate faxed to the Court today.

Please be advised the medical certificate is insufficient for the [FCC] to adjourn the hearing.

Consideration will only be given to an administrative adjournment if it is by consent.

Should you obtain the consent of the Minister, please notify chambers in writing, including written confirmation of consent.

The matter remains listed for hearing at 10am on 25 August 2014.

13    At 3:43pm on that day, the appellant sent a further fax to the FCC with the following cover letter:

… [A]s I did Fax you my medical certificate for not attending the Court hearing on 25th of August 2014. Because I am very sick. So I am requesting you [FCC] for give me extension and provide me another Court hearing date.

The fax included another medical certificate from the same doctor which certified that the appellant was “unfit to attend the court hearing because of the illiness (sic)” from 22 August 2014 to 26 August 2014 inclusive.

14    At 4:07pm on that day, the FCC sent a further email to the appellant, copying the solicitors for the Minister:

I refer to attached.

As previously advised consideration will only be given to an administrative adjournment if it is by consent.

Should you obtain the consent of the Minister, please notify chambers in writing, including written confirmation of consent.

The matter remains listed for hearing at 10am on 25 August 2014.

15    On 25 August 2014, the appellant did not appear. The primary judge considered the appellant’s application for an adjournment of the hearing – in relation to the second medical certificate provided by the appellant. The Minister opposed an adjournment. Applying NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559, the FCC refused the application on the basis that the medical certificate was “quite unsatisfactory”. In NAKX, Lindgren J held at [6]-[8]:

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.

16    In those circumstances, the primary judge proceeded with the hearing generally (pursuant to r 13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules)), and dismissed the application for an adjournment. With the consent of the Minister, the primary judge made a decision without hearing oral submissions pursuant to r 15.03 of the FCC Rules. Ex tempore reasons were given and orders made on 25 August 2014. Written reasons were provided on 12 September 2014. The application for judicial review was dismissed.

17    The FCC’s written reasons reviewed the procedural history of the matter and found that the requirements of s 359A of the Act had been met: reasons at [10]-[17]. The FCC then turned to consider the grounds of review submitted by the appellant: see [9] above. The first ground (see [9] above) was dismissed on the basis that it raised no issue for judicial review as the application had been filed within time: reasons at [26]. The second ground (that the appellant was not happy with the MRT’s decision) was dismissed on the basis that it impermissibly sought to review the merits of the MRT’s decision: reasons at [27].

18    The third ground was that the appellant had previous exceptional circumstances beyond the application lodged previously. The FCC found that the MRT had considered the appellant’s submissions about his circumstances, including issues with his migration agent: reasons at [28]. Further, insofar as the appellant sought to rely on material not put to the MRT, he was not able to do so: reasons at [29]. The third ground of review was therefore dismissed.

19    The fourth ground was that there were High Court decisions in the appellant’s favour. The FCC found that the appellant had not put forward anything to support this submission; indeed, he had failed to file written submissions and failed to appear. That ground was also dismissed: reasons at [31].

20    In addition, the FCC dealt with the appellant’s further submissions to the MRT regarding his migration agent (see [5] above). The FCC found nothing to establish fraud by the appellant’s migration agent on the MRT or on the appellant: reasons at [32].

APPEAL TO THIS COURT

21    On 4 September 2013, the appellant filed a notice of appeal in this Court. The notice of appeal lists the following “grounds of appeal”:

I, SARABJEET SINGH SUDAN from India, have applied for skilled graduate visa for further stay in Australia. Application has been lodged through online portal through the dozy consultancy in the city unknowingly. Applicant lodgement date with Department of Immigration and border protection is ‘02nd March 2011. 4th of April 2012 I have got refusal from DIAC that I don’t satisfy English language ability to get grant of 485 subclass visa which is skilled graduate visa, I have not been requested by DIAC to provide the documentation, however all documents have been submitted to the officer with the application and letter which has contained exceptional circumstances beyond the application lodgement.

Nevertheless, I have lodge the application at Melbourne registry to review the decision, MRT application lodgement date was 19th April 2012. I have explained everything what exactly had happened in my case, again [MRT] has sent me letter that I have lost the right of hearing by not commenting on my case. Suddenly after couple of months I have got notification from Tribunal that to attend hearing on 22nd November 2013.

Person has submitted all documents and explanation with application, how come a person loose a hearing right, really I am not understanding and felt it is procedural fairness.

That is the reason I have brought the tribunal decision for further review under judicial review; I am looking forward to Natural justice on my review. I have not had any control of his situations which became very bad in Australia to provide reasons at tribunal, but [MRT] has made me ineligible to come for hearing date. According to letter received by mail applicant has lodged the review application in time frame. Exactly before hearing date I was ill and could not even walk that time, I was taken by friends to doctors to get the medical treatment. Due to medical problem I could not attend the hearing and all medical certificates have been attached to email which has been sent [FCC] as well as to solicitor. They did not consider my request and dismiss the case on 25th August 2014. New argument came to light which demonstrates the unsatisfactory evidence hasn’t been done by me and I was falsely motivated at the time of the application. And further I had lost [MRT] hearing right and as well as [FCC] hearing. Does the Court below [1] have power to review the dismissal order of [FCC] pursuant to either a common law power or pursuant to statute?

2. The Federal court derives its powers to accept to check my argument to give legitimate decision on the basis of I am ready to provide valid reasons why he had to have missed at hearing date, and how I am eligible to attend the hearing at [MRT] if I am given chance by Federal court or DIBP (Department of Immigration and Border Protection)

Under the Federal court regulations, court has power to re-open an appeal in circumstances where it can be demonstrated that a Federal court has court hasn’t even looked at applicant claims as there was big barrier “Judicial review has been made which has not been proved by applicant to make it Valid application”, but he has exceptional circumstance beyond his control.

(Emphasis added.)

22    Before turning to consider the balance of the material filed by the appellant, it should be noted that the italicised sections of the appeal grounds erroneously refer to the inability of the appellant to satisfy the English language requirements when the issue before the Minister and the MRT was in fact the failure to provide a Skills Assessment for the appellant’s nominated occupation.

23    The appellant also filed an affidavit in which he stated:

I am not happy with decision made by [MRT]

(a) As well as DIAC decision

I am not happy with decision of [FCC]

The affidavit attached a copy of the MRT’s decision and the appellant’s letter to the MRT (see [5] above).

24    The appellant was directed to file and serve a written outline of submissions by no later than 10 business days before the hearing (that is, by 3 February 2015). The appellant did not comply. On 4 February 2015, this Court wrote to the appellant asking when the submissions would be filed and why they had not been filed on time. On 5 February 2015, the appellant replied “Hi sorry for replying rate basically I was misunderstood about ur email I went to the federal court today and they have explained me about that so I will be sending you the submission in a day or so .. Thanking you”.

25    The hearing was listed at 11:30am on 17 February 2015. The parties were notified. When the matter was called at that time, the appellant did not appear. The solicitor for the Minister telephoned the appellant, who advised that he had thought the hearing was on 18 February 2015. The matter was adjourned until 11.30am on 18 February to allow the appellant a further opportunity to appear. The appellant was notified of the adjournment by email and responded that he would attend. As at 17 and 18 February 2015, the appellant had not filed written submissions. The appellant appeared on 18 February 2015.

26    Despite the lack of specificity and particularity in the appellant’s notice of appeal, it appears that the appeal grounds relied upon by the appellant were:

(1)    The FCC erred in refusing the appellant’s request for an adjournment and not accepting the medical certificates provided in support of the request;

(2)    The MRT erred in finding that the appellant had lost the right to a hearing; and

(3)    The MRT failed to accord natural justice.

The Minister submitted, and I accept, that as a matter of efficiency, these grounds should be considered by the Court as having been validly made: cf VUAX v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 158 at [48]. Each appeal ground will be considered. In his oral submissions, the appellant’s principal complaint was that he was misled by his migration agent at the time of his visa application and then misled again by a second migration agent at or about the time of the application for review by the MRT. That submission will be addressed below.

CONSIDERATION

Failure of the FCC to adjourn the hearing

27    The appellant sought an adjournment of the FCC hearing and it was refused: see [11]-[16] above.

28    The appellant’s appeal is an appeal against an exercise of discretion – to refuse to grant an adjournment of the FCC hearing. An appeal of that nature is governed by established principles: House v The King (1936) 55 CLR 499 at 504-505. It is not enough if the appellate court considers that if it had been in the position of the primary judge, it would have taken a different course. It must appear that some error has been made in exercising the discretion – if the primary judge acted upon a wrong principle, took into account extraneous or irrelevant matters, mistook the facts or failed to take into account some material consideration – before the determination should be reviewed. Only then can the appellate court exercise its own discretion in substitution for that of the primary judge, if the materials before it permit it doing so. Also, if it is not possible to ascertain how the primary judge reached the result embodied in the order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion. Although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

29    Consistent with those established principles, there is no identifiable appellable error in this aspect of the reasons of the primary judge which would provide any basis for an appellate court to interfere with the primary judge’s decision to refuse to grant the adjournment.

30    The primary judge set out the factual basis for the adjournment, applied the relevant authority (NAKX) and then proceeded to hear the matter in the absence of the appellant. There is nothing to suggest that the primary judge made an error of the kind described in House v The King in reaching that decision. Indeed, as the reasons for decision of primary judge record, the medical certificates provided by the appellant to the FCC were “quite unsatisfactory” – they did not disclose whether and to what extent the medical condition complained of impacted on the appellant’s ability to attend and participate in the hearing.

31    There is, however, another reason why this appeal ground should be dismissed. This appeal ground is immaterial because there is an “essential legal basis” that sustains the decision of the FCC. That “essential legal basis” is that the appellant has not provided any evidence of a necessary criterion for the grant of the relevant visa. The necessary criterion for the grant of the relevant visa, which cannot now be remedied, is a Skills Assessment for the appellant’s nominated occupation. It has not been, and cannot now be, provided. For that additional reason, this appeal ground is dismissed: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [29] and [88]-[89].

Failure by the MRT to provide a hearing before it

32    The MRT found that the appellant did not have a right to appear before it as he failed to respond to the s 359A invitation to comment: see [7] above.

33    The FCC considered and concluded that the requirements of s 359A of the Act were met: see [17] above. There is no identifiable appellable error in this aspect of the reasons of the primary judge.

34    The invitation to comment on, or respond to, adverse information under s 359A of the Act and to provide information under s 359(2) of the Act was sent to the appellant. The appellant failed to comment on the adverse information (s 359A) and failed to provide information under s 359(2), within the specified time. Sections 359C(1) and (2) of the Act therefore applied and permitted the MRT to make a decision on the review without taking any further action to obtain the information or the appellant’s views on the information. The MRT was not obliged to invite the appellant to appear before it to give evidence and present arguments (s 360(2)). Indeed, the appellant was not entitled to appear before the MRT: s 360(3). As the appellant was not entitled to appear, the MRT did not have power to allow the appellant to appear: s 363A. This appeal ground is dismissed.

Failure to accord natural justice

35    The MRT completed its statutory task and considered the evidence provided by the appellant. As noted earlier, the appellant had not provided evidence of a Skills Assessment, a necessary criterion for the grant of the visa: see [7] above. This failure was fatal to the appellant’s visa application. The MRT could do nothing but affirm the Minister’s decision.

36    Next, it is necessary to consider the decision of the MRT that the appellant had had sufficient time to take steps to satisfy that criterion and did not propose to defer its decision to permit him additional time to obtain the Skills Assessment. At the time of the MRT’s decision, the appellant had been on notice of the basis for the refusal to grant the visa for 19 months, since the Minister’s decision in April 2012: see [4] above. Further, the MRT had requested the relevant information twice, in July and October 2013: see [6] and [7] above. As part of the request in October 2013, the MRT informed the appellant that failure to provide the information may be a basis for refusal to grant the visa. Indeed, the appellant’s statement in support of his application for review records that he was aware of and understood that consequence: see [5] above. This appeal ground is dismissed.

Fraud on the Minister and the MRT

37    The fraud allegations raised by the appellant were not particularised. As noted above, the appellant addressed these allegations in his oral submissions.

38    Taken at its highest, the appellant’s complaint concerned a migration agent said to have been engaged by him at the time of the initial application for the visa and a second migration agent engaged by him at the time of the MRT review. As the Minister submitted, the conduct of the first migration agent may be put to one side for at least the following reasons. First, at the time of his application to the MRT, the appellant personally provided a written statement to the MRT. That written statement is set out at [5] above. That statement records the alleged fraud by the initial migration agent. However, the passages in italics also record that the appellant himself was requested by the Minister to provide the necessary Skills Assessment, he knew that he needed to satisfy that requirement and, no less importantly, he personally knew that the name of the relevant assessing authority – TRA. The fact that the appellant himself knew that he was required to provide supporting materials to the MRT is further evidenced by the fact that there were a number of documents attached to the statement he provided to the MRT. Indeed, the appellant knew that he had to provide the documents from the time of the decision by the Minister to refuse to grant the visa because of the absence of the Skills Assessment. As the Minister submitted, the problem with the appellant’s application was the failure to provide the necessary documents, not that the documents provided were fraudulent.

39    In this context, it is necessary to record that before the MRT the appellant had a different representative. At the hearing, the appellant complained that he was told by that migration agent not to attend the MRT. This allegation had not been raised by the appellant in the documents he filed in the FCC or in this Court. As the Minister submitted, there was and is no suggestion that that representative committed “fraud” on the appellant or on the MRT: cf SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [53]. The appellant knew from the time of the decision by the Minister to refuse to grant the visa that he had to provide the Skills Assessment. The appellant did not suggest that he was not provided with the two notices sent by the MRT requesting the Skills Assessment: see [6] and [7] above. He did not provide the MRT with the Skills Assessment and, indeed, at the hearing before this Court said he could see no point or reason for doing the Skills Assessment. No jurisdictional error has or can be identified in the decision of the MRT. This appeal ground is dismissed.

CONCLUSION

40    For those reasons, the appeal is dismissed with costs.

Associate:

Dated:    19 February 2015