FEDERAL COURT OF AUSTRALIA

Patel v Minister for Immigration and Border Protection [2015] FCA 881

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the respondents’ costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT (Revised from transcript)

1    The appellants bring an appeal against the decision of the Federal Circuit Court made on 11 May 2015 dismissing their application for judicial review of a decision of the Migration Review Tribunal made on 24 March 2014. Three grounds of appeal are raised in the notice of appeal. The first is that “the Judge erred in calculating the qualifying points pursuant to clause 885.221 of schedule 2 and part 6B.3 of the Migration Regulations 1994 (Cth)”. The second is that “the Judge erred in making a finding of fact at paragraph 12 of the Judgement that there is no evidence that the applicant communicated any further with the Tribunal when in fact the applicant did contact the Tribunal to delay finalising his application until 3 February 2014 as he had booked his test for 18 January 2014”. The third is that “the Judge erred in coming to the conclusion at paragraph 16 of the Judgement that the Tribunal is not bound by technicalities and acting in accordance with substantial justice when clearly substantial justice was not accorded to the applicants”.

2    The first appellant was the primary applicant for applications by the appellants on 24 December 2009 for Skilled (Residence) (Class VB) visas. The applications were refused on 18 January 2013 by a delegate of the Minister on the basis that the primary applicant did not satisfy clause 885.221 of Schedule 2 to the Migration Regulations 1994 (Cth). The first appellant required 120 points under that clause to qualify for the visa but he was assessed as having only 110 points.

3    The appellants applied to the Migration Review Tribunal on 23 January 2013 for a review of the delegate’s decision. An officer of the Tribunal wrote to the appellants’ migration agent on 6 November 2013 inviting them to appear to give evidence and to present arguments to the Tribunal. The Tribunal received a response to that invitation on 10 December 2013 in which the Tribunal was informed that neither the appellants nor their agent proposed to attend the hearing. The primary applicant wrote to the Tribunal on that day requesting an extension of time on the basis that he had an IELTS test on 18 January 2014. An officer of the Tribunal had a telephone communication with the migration agent for the appellants which was treated by the Tribunal as a request on behalf of the appellants to postpone the hearing of their application. The appellants were granted an extension of the hearing until the end of January to permit the IELTS results to be submitted.

4    The appellants’ migration agent subsequently advised the Tribunal on 4 February 2014 that the primary applicant had not achieved the necessary IELTS score but that he had applied for a re-evaluation. On 7 February 2014 the Tribunal directed that the agent of the appellants have until 14 March 2014 to provide the results of the IELTS re-evaluation of the primary applicant.

5    The Tribunal did not hear from the appellants by 14 March 2014. On 24 March 2014, not having heard from the appellants, the Tribunal affirmed the delegate’s decision concluding that the primary applicant was entitled only to 110 points of the 120 points he needed to qualify for the visa.

6    The appellants applied to the Federal Circuit Court for judicial review of the decision of the Tribunal on 15 April 2014. Judge Harland dismissed the application on 11 May 2015 finding that the appellants had been given two opportunities to satisfy the requirements of the visa and that they had been accorded procedural fairness by the Tribunal. On 28 May 2015 the appellants appealed to this Court.

7    The first ground of appeal was not a matter raised by or considered by her Honour on appeal from the Tribunal. Whether or not the primary applicant was to be assessed as having achieved the necessary qualifying points was not the subject matter of the grounds of application for review from the Tribunal to the Federal Circuit Court. Her Honour recorded at [3] that the primary applicant had received a qualifying score of 110 points when he needed a total score of 120 points to qualify for the visa but otherwise did not calculate, nor was required to calculate, the qualifying points required pursuant to clause 885.221 of Schedule 2 to the Migration Regulations 1994 (Cth).

8    In any event, there was no error in the Tribunal’s calculation of the points obtained by the primary applicant and the fact that he had not attained the points required to qualify for the visa applied for. The appellants applied for subclass 885 (Skilled – Independent) visas. Section 92 of the Migration Act 1958 (Cth) provided that the “points” system “has effect where one of the prescribed criteria in relation to a visa of a particular class is the criterion that the applicant receives the qualifying score when assessed as provided by” that subdivision. Clause 885.221 of Schedule 2 to the Migration Regulations engaged that points system for the grant of the visa for which the appellants had applied. Section 93 provided that the Minister “shall make an assessment by giving the applicant the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant”. Regulation 2.26AA prescribed each qualification in column 2 of an item in Part 6B.1 to 6B.12 of Schedule 6B of the Regulations as a qualification in relation to the grant of a sub-class 885 (Skilled – Independent) visa. The appellants had to satisfy the relevant pass mark specified by the Minister by notice in the Gazette in order for them to satisfy the criterion in clause 885.221. The requisite pass mark for the appellants at the time of the delegate’s decision on 18 January 2013, and at the time of the Tribunal’s decision, was 120 points. Section 350 of the Migration Act provides that in reviewing the decision of the delegate the Tribunal is to have regard to both the instruments in force at the time of the delegate’s determination and those in force at the time of the Tribunal’s decision and to adopt that which is more favourable to the applicant. The pass mark of 120 points was specified at the time of the delegate’s decision by Legislative Instrument IMMI 12/017 which commenced on 1 July 2012, although the Tribunal incorrectly referred at [54] of its reasons that Legislative Instrument IMMI 07/056 applied at the time of the delegate’s decision to specify the pass mark as 120 points. The reference to the incorrect Legislative Instrument did not alter the fact that the primary applicant required 120 points to satisfy the visa and that he had not qualified for the visa because he did not have 120 points.

9    The second ground of appeal challenges the judge’s finding at [12] of the judgment in which her Honour found that there was no evidence that the appellants had communicated any further with the Tribunal after the Tribunal had granted a further extension of their hearing before the Tribunal until 14 March 2014. The second ground of appeal is stated as follows:

That the Judge erred in making a finding of fact at paragraph 12 of the Judgement that there is no evidence that the applicant communicated any further with the Tribunal when in fact the applicant did contact the Tribunal to delay finalising his application until 3 February 2014 as he had had booked his test for 18 January 2014.

The way in which the ground of appeal is expressed suggests that her Honour overlooked the communication between the Tribunal and the appellants (or their migration agent) to postpone the initial hearing that had been set down for 11 December 2013. Her Honour, however, did not overlook those communications and recorded them in some detail at [7]-[11] of her reasons and did so by reference to materials in the court book. At [12] her Honour stated:

There is no evidence that the applicant communicated any further with the Tribunal. The Tribunal Member issued her decision dated 24 March 2014 affirming the Delegate’s decision not to grant the visa. The Tribunal Member sets out the requirements to qualify for the skilled resident visa and sets out the points that the applicant received, which totalled 110 points. That is 10 points short of the qualifying 120 points.

Her Honour’s finding in this paragraph was to the effect that there had been no evidence of any further communication from the appellants with the Tribunal after 4 February 2014. That finding was not erroneous.

10    The third ground of appeal purports to challenge a conclusion of her Honour at [16] of the judgment. Her Honour said at [16] of her judgment:

It was clear in that case that the delay was not due to any fault of the applicant, nor of her migration agent, and there was no suggestion that the decision had been based on any balancing of legislative objectives, as set out in section 353 of the Migration Act 1958 (Cth), which talks about the Tribunal reviewing a decision being not bound by technicalities and acting in accordance with substantial justice and [the] merits of the case.

The ground of appeal in relation to this paragraph contends there has been an error in concluding that the Tribunal was “not bound by technicalities and acting in accordance with substantial justice and merits of the case”.

11    Her Honour’s observations at [16] reveal no error. What appeared in that paragraph was part of a consideration by her Honour of the decision in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. Nothing in paragraph [16] of her Honour’s reasons for judgment expressed any conclusion about the conduct of the Tribunal in respect of the application by the appellants in their appeal from the delegate of the Minister in this case. The specific words in [16] complained of in the third ground of appeal are an accurate description of the effect of s 353 of the Migration Act 1958 (Cth) which states that the Tribunal is “not bound by technicalities” and “shall act according to substantial justice”. Her Honour went on to state that the case of Li did not apply to the facts on appeal because in that case the primary applicant had sought an adjournment “or more properly a delay in a decision on two occasions” and had been granted that delay on the two occasions. Her Honour was correct in expressing the conclusion at [17] that the Tribunal was “not obliged to indefinitely postpone finalising its review” or “obliged to postpone the finalisation of its review whenever the applicant informed the Tribunal that he intended to sit for another test”. In Rahman v Minister for Immigration and Citizenship [2012] FCA 1312 Yates J said at [49]:

The plain fact is that the Tribunal was not under an obligation to indefinitely postpone finalisation of its review. Similarly, it was not under an obligation to postpone the finalisation of its review whenever the appellant informed it of his intention to sit for another test.

The appellants in the present proceedings did not formally request an additional adjournment of the determination of their application which had been postponed more than once. They had simply failed to provide any further documentation to substantiate their claim for a visa within the postponed time period after their immigration agent at been told that they would “have until [close of business] 14 March 2014 to provide the results of the applicant’s IELTS re-mark”. The Tribunal was not obliged to take any further step after the appellants had failed to provide the results within the time allowed. They had elected not to appear before the Tribunal after having been informed that the Tribunal could finalise the decision in their case at any time as a result.

12    Accordingly, the appeal will be dismissed.

Associate:

Dated:    19 August 2015