FEDERAL COURT OF AUSTRALIA

Bussa v Minister for Immigration and Border Protection [2019] FCA 1994

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed with costs.

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

REASONS FOR JUDGMENT

ANASTASSIOU J:

1    The appellant appeals from a judgment of the Federal Circuit Court: Bussa v Minister for Immigration & Anor [2019] FCCA 655. The Circuit Court dismissed the appellant’s application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal. The Tribunal upheld a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, to deny the appellant’s application for a Temporary Graduate (Graduate Work) (Subclass 485) visa.

2    For the reasons that follow the appeal is dismissed.

Background

3    The appellant is a citizen of India who arrived in Australia in 2011 on a student visa. On 19 August 2015 he applied for the visa the subject of this appeal.

4    On 27 January 2016 the appellant was notified that his application for the visa had been denied as it did not satisfy the conditions imposed by the Migration Regulations 1994 (Cth). The Regulations require an applicant for such visa to nominate a skilled occupation, and that the applicant provide evidence that he or she had applied for an assessment of his or her skills in the nominated occupation by a relevant assessment authority. The appellant specified Electronics Engineer as his skilled occupation. The appellant answered “no” to the question on the application form concerning whether he had “applied to a relevant assessing authority for an assessment of [his] nominated skilled occupation”. However, on a later page of the application form under the heading “Applicant skills assessment”, the appellant provided the following responses:

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.

Nominated Occupation         Electronics Engineer

Name of assessing authority     Engineers Australia

Date of skills assessment     29 JAN 2014

Reference/Receipt number     4476073

5    This skills assessment is referred to in the balance of these reasons as the prior skills assessment. Though not apparent to the delegate at the time of the application, it appears that prior to the application for the visa having been made, the prior skills assessment was not positive.

6    On 26 October 2015, after receiving the appellant’s application, the Minister’s delegate requested the appellant provide evidence of a skills assessment by Engineers Australia before having made his application. On 3 December 2015 the appellant replied providing a receipt for payment for a subsequent skills assessment, dated 3 November 2015 (subsequent skills assessment). That evidence was thus provided after the date the appellant submitted his application. It appears the subsequent skills assessment was also unsuccessful, but nothing turns upon this and I mention it for completeness only.

7    The delegate found that the appellant did not meet the requirements of Regulation 485.223 as he had not provided contemporaneously with his application for the visa evidence that he had applied for a skills assessment prior to making the application for the visa.

8    On 26 October 2016 the Tribunal affirmed the decision of the Minister’s delegate for the same reasons. The Tribunal said:

STATEMENT OF DECISION

3.     Based on the evidence before me, including oral evidence given at the hearing, I am not satisfied that you meet the regulation 485.223 because, when you applied for this visa on 19 August 2015 you have not provided, or that application was not accompanied by the evidence that you applied for skill assessments for your nominated occupation by a relevant assessing authority. You have also told me that the skills assessment application lodged on 5 December 2015 was subsequently refused, and that you were banned for 12 months from reapplying for skill assessment because of substantial amount of plagiarism that was discovered by the Institute for Engineers. So, based on all of that evidence, I am affirming the decision made by the Department not to grant you subclass 485 visa.

DECISION

The Tribunal affirms the decision under review.

9    On 11 November 2016 the appellant filed an application for judicial review in the Circuit Court. The appellant was represented before the Circuit Court by counsel. The application to the Circuit Court contained 18 ‘grounds of application’. However, at the hearing counsel narrowed the grounds to two, both concerning whether the Tribunal should have found that clause 485.223 was satisfied by reason of either the prior or subsequent skills assessments.

10    The primary judge found neither assessment satisfied the requirements of clause 485.223.

Application for judicial review

11    On 28 March 2019 the appellant filed an Application for Leave to Appeal from the Circuit Court. Leave was not required and accordingly the application was treated as an appeal. In his application the appellant stated the following under the heading ‘grounds of application’ (reproduced verbatim):

1.    The Second Respondent and the Primary Judge committed a legal error when they failed to follow the law settled in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 84 ALJR 251; (2010) 264 ALR 417, that a time of application criterion could be satisfied by providing an information after the lodgement of the application. Also there is an exceptional circumstances exist as skill assessment has been refused and barred at the time of the application as appellant had to wait for one year to reply for skill assessment. But at the time of Judicial Review appellant had the positive skill assessment which is to considered, but it hasn't been considered.

2.     The refusal of the second respondent to accept the exceptional circumstances, during the judicial review primary judge decision is plainly unfair, unjust and unreasonable. Because s.55 minister still consider the material of appellant if primary judge had assessed the appellants review according to the act. Particulars:

(i)    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 ...' Berenguel at [26].

(ii)    Minister for Immigration and Citizenship v Li [2013) HCA 18.,I wish to seek the review of the Judge Riethmuller Decision.

The appellant has not had any control of his situations which became very bad in Australia to provide reasons at tribunal and delegate as he was merely barred by Engineers Australia, but Tribunal and federal Circuit court of Australia decisions have made appellant in trouble. Same material and same information has been submitted to Engineers Australia after a year, then it was approved. The wrong assessment and bar from Engineers Australia pushed the appellant in trouble. New argument came to light which demonstrates the unsatisfactory evidence hasn't been done by appellant, the provision of false and misleading evidence and manifest error. Does the Court below have power to re-open the original appeal pursuant to either a common law power or pursuant to statute?

The Federal court derives its powers to accept to check appellant argument to give legitimate decision on the basis of appellant is ready to provide valid reasons. 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 appellant claims.

12    The appellant was not represented before the Court and did not provide any written submissions. At the hearing before me the appellant accepted that the Minister’s summary of the facts were accurate.

13    The appellant was candid in his account of the facts relating to the result of the prior skills assessment and subsequent skills assessment. The appellant also informed me that he now has a positive skills assessment.

14    For the reasons referred to below, whether or not the appellant now has a positive skills assessment is not relevant to the question that arises on this appeal.

Evidence of skills assessment

15    The question raised by this appeal is of narrow compass, essentially what evidence will suffice for the purposes of satisfying clause 485.223 and at what time must that evidence be provided by the applicant for the visa?

16    The primary Judge relied upon the Full Court’s decision in Khan v Minister for Immigration and Border Protection [2018] FCAFC 85. In Khan, Tracey J, with whom Charlesworth and Derrington JJ agreed, considered the application of clause 485.223 to facts very similar to the present. His Honour at [16] and [17] said:

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.

17    It follows from what Tracey J said that either the applicant for the visa satisfies the requirement to provide evidence that he or she has applied for a skills assessment at the time of the application for the visa, or he or she does not. The appellant’s reference to the prior skills assessment (referred to in paragraph 5 above) could not satisfy that requirement as it related to a much earlier application for such assessment which had resulted in a negative outcome before the application for the visa was made. It could not therefore constitute evidence of an application for a skills assessment as that application was spent and resulted in a negative outcome in any event.

18    Clause 485.223 requires an applicant for such visa to furnish evidence of the application for the skills assessment. This evidentiary requirement is not satisfied merely by the applicant saying that he or she has made the relevant application. Something more than an affirmative answer on the application form is required. In Nguyen v Minister for Immigration & Anor [2016] FCCA 1523 at [35] Judge Burchardt construed the requirement to provide evidence as requiring more than merely asserting compliance with the condition. I respectfully agree with Judge Burchardt’s construction. The appellant appears to have attempted to provide evidence in relation to the prior skills assessment by giving the receipt number relevant to the application. If the prior skills assessment was not spent for the reasons I have explained above, the specification of the receipt number may have been sufficient as contemporaneous evidence, subject to a copy of that receipt being produced on request. It would have been preferable for a copy of the receipt to have been provided with the application but the specification of the receipt in my view may have been sufficient to satisfy the objective intention of clause 485.223 identified by Tracey J in Khan. It is unnecessary for me to determine whether reference to the receipt number was sufficient to meet the requirement.

19    I turn now to the subsequent skills assessment. The relevance of this assessment was put by counsel for the appellant in the Circuit Court on a different basis. The appellant contended that the subsequent skills assessment satisfied clause 485.223 when read together with sections 54 and 55 of the Migration Act 1958 (Cth). Those sections provide:

54     Minister must have regard to all information in application

(1)     The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.

(2)     For the purposes of subsection (1), information is in an application if the information is:

(a)     set out in the application; or

(b)     in a document attached to the application when it is made; or

(c)     given under section 55.

(3)     Without limiting subsection (1), a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions.

55     Further information may be given

(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.

20    A similar ground was raised in Khan. Tracey J addressed the contention as follows (at [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.

(emphasis added)

21    The same conclusion follows here. Upon the plain and proper construction of clause 485.223, the provision of evidence of a skills assessment having been applied for after the date of the application is not evidence “accompanying” the application. Further and in any event, as the appellant frankly conceded, the subsequent skills assessment resulted in negative assessment.

22    The first two paragraphs of the appellant’s grounds of appeal refer to the High Court’s judgment in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 84 ALJR 251; 264 ALR 417; 114 ALD 1 in support of the application of ss 54 and 54 to the decision of the Tribunal. A similar submission was also made by the appellant in Khan. In Khan Charlesworth J considered this as follows (at [28]-[32]):

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.

23    I respectfully agree with her Honour’s analysis and conclusions. The same applies to the present appeal.

Grounds of appeal

24    I turn now to the remaining (unnumbered) grounds of appeal referred to above. It is difficult to discern a juridical ground or alleged legal error from these grounds. The appellant refers to “exceptional circumstances”. Despite the unfortunateness of the appellant’s situation, clause 485.223 essentially requires strict compliance. In Anand v Minister for Immigration and Citizenship [2013] FCA 1050; 215 FCR 562; 136 ALD 633 Katzmann J (at [28]) considered whether there might in appropriate circumstances be a degree of elasticity to what is meant by “accompanied” in clause 485.223. In Khan, Tracey J (at [14] and [15]) warned of the difficulties that could arise if the temporal requirement that the applicant be accompanied by the relevant evidence were to be “stretched”. It is unnecessary for me to express any view on the question of what, if any, latitude there might be in relation to the temporal requirement in clause 485.223, other than to say that there is nothing in the clause which confers a general discretion to excuse a failure to provide contemporaneously with the application evidence of a relevant application for a skills assessment.

Disposition

25    The appeal is dismissed with costs.

Associate:

Dated:    27 November 2019