FEDERAL COURT OF AUSTRALIA

Shrestha v Minister for Home Affairs [2019] FCA 1843

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

MARKOVIC J:

1    This is an appeal from orders made by the Federal Circuit Court of Australia (Federal Circuit Court) on 4 April 2019 dismissing an application made pursuant to s 476 of the Migration Act 1958 (Cth) seeking review of a decision of the second respondent (Tribunal) not to grant the appellants Skilled (Provisional) (Class VC, subclass 485) visas (Visas).

background

2    The appellants are husband and wife and citizens of Nepal.

3    On 4 January 2018 the appellants applied for the Visas in the Graduate Work stream (Application). The first appellant, Mr Shrestha, was the primary applicant and the second appellant was the dependent applicant.

4    In the Application, Mr Shrestha listed his nominated occupation as “accountant (general)”. On page 1 of the Application, under the heading “Skills Assessment”, the following question appeared:

Have you applied to a relevant assessing authority for an assessment of your skills for your nominated skilled occupation?

5    The answer recorded against that question was “No”.

6    At page 15 of the Application, the following appeared under the heading “Applicant skills assessment”:

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.

7    That part of the Application also included fields for the applicant completing the form to provide the name of the assessing authority, the date of the skills assessment and the reference/receipt number. However, no details were included in the Application for those matters.

8    On 5 February 2018 a delegate of the first respondent (Minister) refused the Visas on the basis that Mr Shrestha had failed to provide evidence that he had applied for a skills assessment for the nominated skilled occupation by a relevant assessing authority at the time of the Application. The delegate concluded that Mr Shrestha had failed to satisfy subcl 485.223 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations).

9    On 20 February 2018 the appellants sought review of the delegate’s decision in the Tribunal.

the tribunal proceeding

10    In a letter dated 6 February 2018, which accompanied the application to the Tribunal, Mr Shrestha informed the Tribunal that he had applied for the Visas “through the agent and the agent forgot to advise me if I need a skill assessment to apply this visa. So, my agent applied this visa without the skill assessment and got refused”. Mr Shrestha informed the Tribunal that had he known that he needed a skills assessment, he would have obtained one. Mr Shrestha also enclosed with his letter a tax invoice dated 9 February 2018 and a letter dated 13 February 2018 from Chartered Accountants Australia and New Zealand (CAANZ) which assessed his qualification as suitable for his nominated occupation.

11    On 7 November 2018 the appellants attended a hearing before the Tribunal. At the hearing they provided a letter from their migration agent dated 6 November 2018 in which the migration agent acknowledged his error in applying for the Visas on behalf of the appellants. That letter included:

I applied Post Study Work Visa (485 subclass-2 years) for my client [Mr Shrestha] and his spouse. I supposed to apply Graduate Visa subclass 485 18 months. It was an honest mistake that I made, I did not realise he arrived on student visa before 5th of November 2011 that requires evidence of skill assessment.

12    On 22 November 2018 the Tribunal affirmed the decision under review. The Tribunal noted that the issue before it was whether Mr Shrestha met subcl 485.223 of Sch 2 to the Regulations, which requires that, when the visa application is made, it is accompanied by evidence that the applicant for the visa applied for an assessment of his or her skills for the nominated skilled occupation by the relevant assessing authority.

13    The Tribunal noted that, on the evidence before it, Mr Shrestha had nominated the occupation of “accountant (general)” which is a specified skilled occupation and, for that occupation, the relevant assessing authority is one of the three different authorities set out in the Tribunal’s reasons. The Tribunal also observed that, in the Application, the response to the question: “have you applied to a relevant assessing authority for an assessment of your skills for your nominated skilled occupation?” was recorded as “no”.

14    The Tribunal referred to the documentation provided by Mr Shrestha with his application to the Tribunal, including the invoice and skills assessment from CAANZ and the letter from the appellants’ former migration agent which was provided at the hearing. The Tribunal noted that there was no evidence before it to suggest that Mr Shrestha, at the time of application, intended to apply for a different stream of visa and, despite the representative claiming a mistake had been made in lodging the incorrect visa stream, the applicant, one month later, lodged an application for skills assessment which suggested to the Tribunal that the intent remained to apply for the Graduate Work stream.

15    The Tribunal observed that it was required to apply the legislation as it stands and that it had no discretion to waive the requirements of subcl 485.223 of Sch 2 to the Regulations. It found that the evidence before it indicated that, at the time of application, Mr Shrestha did not provide evidence of a skills assessment and that he applied for a skills assessment approximately one month after the Application for the Visas was lodged. Thus, on the basis of the evidence before it, the Tribunal was not satisfied that, when it was made, the Application was accompanied by evidence of an application for a skills assessment for the nominated skilled occupation of accountant by a relevant assessing authority and, on that basis, found that Mr Shrestha did not satisfy the criteria for the grant of the Visa.

legislative framework and applicable principles

16    It is convenient to set out the applicable legislative framework at this point.

17    First, for the grant of a visa, the Temporary Graduate (subclass 485) visa has two visa streams: the Graduate Work stream and the Post-Study Work stream.

18    For the grant of a visa in the Graduate Work stream, an applicant must relevantly satisfy subcl 485.223 of Sch 2 of the Regulations which provides:

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.

19    It is also relevant to note that, although an applicant seeking to satisfy the criteria for the grant of a visa in the Post-Study Work stream is not required to provide any evidence of a skills assessment, an applicant cannot apply for a visa in that stream unless, relevantly, they were granted their first student visa on the basis of an application made on or after 5 November 2011: see subcl 1229(3)(l)(ii) of Sch 1 to the Regulations. I pause here to note that it was not in dispute that Mr Shrestha was thus precluded from applying for the grant of a visa in the Post-Study Work stream because he was granted his first student visa in an application made before that date.

20    In Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 (Khan), a Full Court of this Court considered the proper construction of subcl 485.223 of Sch 2 to the Regulations. At [15]-[18] and [20]-[21], Tracey J, with whom Charlesworth and Derrington JJ agreed, relevantly, said:

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. …

…

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.

the federal circuit court proceeding

21    On 20 December 2018 the appellants applied for judicial review of the Tribunal’s decision to the Federal Circuit Court. In their application, they raised four grounds of review (as written):

l.    The Second Respondent made jurisdictional error by making error of law as to the proper construction of regulation 485.223 of the Migration Regulations 1994.

Particulars

a.    See ground 2 below.

2.    The Second Respondent made jurisdictional error by failing to consider whether in circumstances of a demonstrated mistake by an agent, any temporal requirement under regulation 485.223 was effectively suspended.

3.    The Second Respondent made jurisdictional error in failing to consider relevant information.

Particulars

a.    At [12] the Applicant provided documentation to the Second Respondent prior to the hearing consisting of an invoice dated 9 February 2018 from CAANZ and a skills assessment dated 13 February 2018 also from CAANZ.

b.    In the case of Nguyen v Minister for Immigration & Anor (2016) FCCA 1523, Burchardt J interpreted that Clause 485.223 is expressed in “imperative terms”, suggesting that there must be some very close temporal connection between the lodgement of the application and the submission of evidence in order for it to be found that the evidence has “accompanied” the application.

4.    The Second Respondent made jurisdictional error by making a decision which is unreasonable and irrational.

Particulars

a.    The Applicant applied for the visa on 4 January 2018. The applicant’s student visa was valid until 31 January 2018. While making online application, the system allows the application to proceed further subject to mandatory information being provided; e.g. if the passport details were given wrong, then the system would not let the applicant to proceed the application further. Since the Applicant ticked “no”, the system should not have allowed him to complete and lodge the application and even if it did, it should have notified him immediately. The Applicant could still lodge the application until 31 January 2018.

22    The primary judge, in considering the application, referred to the decision in Khan and found that, as he was bound by that decision, the application must be dismissed.

23    Nevertheless, the primary judge also addressed each of the grounds of review raised in the application filed with the court. His Honour dismissed grounds 1 to 3, on the basis that he was satisfied that the Tribunal applied the correct construction of subcl 485.223 of Sch 2 to the Regulations and that the Tribunal did not fail to consider the skills assessment that was subsequently provided to it. His Honour found that the temporal requirement in subcl 485.223 cannot be ignored because of the negligence of the migration agent. His Honour also dismissed ground 4 on the basis that although the online visa application system may be confusing, that was not a matter that could be taken into account.

the appeal

24    On 23 April 2019 the appellants filed their notice of appeal in which they raise the following three grounds of appeal (as written):

1.    The initial hearing date in the Federal Circuit Court was set for 17 April 2019. Without the Appellants awareness/consent, the hearing date was brought forward to 4 April 2019, hence the Appellants were provided with no sufficient notification.

2.    His Honour failed to consider the Appellants wish to adjourn the matter. The Appellants request to attain legal representation was denied.

3.    The Appellants were deprived of procedural fairness.

25    The appellants did not file any written submissions. However, at the hearing before me, Mr Shrestha made a number of submissions on his behalf and on behalf of his wife.

26    First, Mr Shrestha submitted that they had a lawyer, who was to appear before the Federal Circuit Court, but who pulled out before the hearing, even though he had been paid for his services.

27    Secondly, Mr Shrestha also submitted that the date for hearing before the Federal Circuit Court was originally scheduled for 17 April 2019, but was brought forward to 4 April 2019, as I understand it, without consultation with the appellants or their then lawyer. Mr Shrestha said that they were not given proper notice of the new date and did not have time to get a new lawyer. However, they were aware of the date and did receive notification of it. I understood the issue to be, as raised in ground 1 of the notice of appeal, that the date of the hearing was changed without sufficient notification and any consultation with the appellants. Mr Shrestha observed that the period was then too short to permit the appellants to locate a new lawyer and so he represented himself and Mrs Shrestha at the hearing.

28    Thirdly, Mr Shrestha made some submissions about the decision in Khan. He submitted that Khan was different to this case because here he and Mrs Shrestha had a migration agent and it was due to the migration agent’s error that they failed to meet the criteria in subcl 485.223 of Sch 2 to the Regulations. That is, as I understood it, Mr Shrestha said the point of difference was that, unlike him, Mr Khan did not have the assistance of a migration agent when completing his application for his visa who caused the error.

29    Fourthly, Mr Shrestha submitted that he went to a migration agent in order to have some assistance in understanding the applicable rules, which are complicated. He said that the appellants put all of their trust in the registered migration agent and provided the documents that were requested by that migration agent. Mr Shrestha said that had he known that he had to obtain the skills assessment, he would have done so, as at that stage he had time before his student visa expired and was able to do so. He was simply unaware that it was required.

30    Finally, Mr Shrestha submitted that if the skills assessment was such a crucial document, then the Minister’s department’s online system should have notified him of the requirement to provide it with the application, but it did not.

Consideration

31    I turn, then, to consider the appellants’ grounds of appeal and the additional submissions made by them.

32    By ground 1 the appellants contend that the hearing before the Federal Circuit Court was brought forward and they were not provided with sufficient notification of the new date. Mr Shrestha made submissions, set out above, in relation to this ground.

33    As is evident from the reasons of the primary judge, Mr Shrestha appeared at the hearing in the Federal Circuit Court. On that basis, there can be no issue that the appellants did not receive notification of the hearing date; clearly, they did. Mr Shrestha accepts that to be so.

34    To the extent that, by this ground, the appellants allege that because the hearing date was brought forward by two weeks they were denied procedural fairness, it cannot succeed. The appellants were ordered to file and serve an amended application and further evidence by 21 March 2019 and their submissions 14 days prior to the date of hearing in the Federal Circuit Court. However, as at the date of the hearing before the primary judge, no such documents had been filed or served on the Minister. In the lead up to the hearing, no steps were taken to attempt to comply with the court’s orders. The hearing was then conducted on 4 April 2019.

35    To the extent that the appellants submitted that they did not have sufficient time to retain a lawyer because of the change in hearing date, I note that there was no evidence of their attempts to retain a new lawyer in the period available either before me or, I infer, before the primary judge.

36    In those circumstances, it cannot be said that the appellants were denied any procedural fairness because of the change in hearing date. Ground 1 should be dismissed.

37    By ground 2 the appellants contend that the primary judge failed to consider their application to adjourn the hearing in order to obtain legal representation. Where an application for an adjournment has been unreasonably refused, a denial of procedural fairness and jurisdictional error may be made out: CPF15 v Minister for Immigration and Border Protection [2018] FCA 330 (CPF15) at [28] and the cases cited therein. Each case will, of course, turn on its own facts: CPF15 at [29].

38    The Minister accepts that the appellants sought an adjournment to enable them to obtain legal representation, which was opposed by the Minister on the basis that it would be futile to adjourn the matter having regard to the decision in Khan. In his written submissions the Minister noted that, although not referred to in the primary judge’s reasons, at the hearing his Honour considered the appellants’ request for an adjournment, but found that there was no utility in granting an adjournment.

39    I accept the Minister’s submission that it is apparent from the primary judge’s reasons and his consideration of the decision in Khan that any adjournment would be futile. In the circumstances of this case, it could not be said that it was legally unreasonable for the primary judge to refuse the adjournment, having regard to the proper construction of subcl 485.223 of Sch 2 to the Regulations, as explained by the Full Court in Khan. That is, it is clear that, even if an adjournment was granted, it would not have made a material difference to the outcome. In those circumstances, ground 2 cannot succeed.

40    By ground 3 the appellants simply assert that they were deprived of procedural fairness. No particulars of how that is said to be so are provided such that it is difficult to know how the appellants contend they were denied procedural fairness. To the extent the appellants rely on the same matters as relied on in support of grounds 1 and 2, for the reasons already given this ground cannot succeed and should be dismissed.

41    The appellants made submissions about the online system operated by the Minister’s department for lodgement of applications for visas, contending that if the skills assessment was a crucial document, then the online system should have somehow informed them that the Application did not include that document. The suggestion seems to be that it should have rejected the application or sent a message or taken some other step to notify the appellants of the absence of the document. However, as the Minister pointed out, there are cases where applicants will apply for a visa, knowing they cannot meet the criteria. This is not a case of an invalid application which cannot be considered. It is a case where an application was lodged, but, because of the failure to include the skills assessment document, it could not satisfy the requirements of subcl 485.223 of Sch 2 to the Regulations.

42    The appellants also made a number of submissions about their migration agent. It is unfortunate that the appellants’ migration agent made the error that he did. That error was advised by the migration agent to the Tribunal. In other words, by the time of the Tribunal hearing, both the appellants and the Tribunal were aware of the error on the part of the migration agent. In those circumstances, it cannot be said that there was a fraud perpetrated on the Tribunal byreason of the conduct of the migration agent.

43    While I have a deal of sympathy for the position the appellants find themselves in, at the end of the day the decision in Khan, which was binding on the primary judge and is binding on me, sets out how subcl 485.223 of Sch 2 to the Regulations is to be interpreted. As the Full Court noted, the clause establishes an objective temporal test requiring that the skills application be provided at the time of the application. That is what the primary judge found. There was no error in his Honour’s findings. The appellants have failed to establish any of their grounds of appeal.

conclusion

44    For those reasons, the appeal will be dismissed. Because the appellants have been unsuccessful, they should pay the Minister’s costs.

45    I will make orders accordingly.

Associate:

Dated:    27 November 2019