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High Court of Australia Transcripts |
Last Updated: 14 March 2019
IN THE HIGH COURT OF AUSTRALIA
Office of the
Registry
Sydney No S210 of 2018
B e t w e e n -
SHU YUEN LAM
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Defendant
NETTLE J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 12 MARCH 2019, AT 9.26 AM
Copyright in the High Court of Australia
HIS HONOUR: For the reasons which I now
direct be incorporated into the transcript, it is ordered that:
This is an Application for a Constitutional
or other Writ under Pt 25 of the High Court Rules 2004 (Cth) by
which the plaintiff seeks certiorari to quash a decision of the Minister’s
delegate of 18 March 2016 to refuse to
grant the plaintiff a Temporary
Graduate (Graduate Work) (Subclass 485) visa, and mandamus to compel the
Minister to determine the
application for visa according to law. The
application is very substantially out of time, but as will appear there is a
satisfactory
explanation for the delay.
On 30 November 2015, the plaintiff applied for a Temporary Graduate (Graduate Work) (Subclass 485) visa.
The criteria for the grant of a Subclass 485 visa included, under reg 485.224 of Sch 2 to the Migration Regulations 1994 (Cth), the following:
“(1) The skills of the applicant for the applicant’s nominated skilled occupation have been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation.
(1A) If the assessment is expressed to be valid for a particular period, that period has not ended.
(2) If the applicant’s skills were assessed on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification was obtained as a result of studying a registered course.”
At the time of lodging his application for visa, the plaintiff had not
been assessed by a relevant assessing authority as suitable
for his occupation
of Carpenter 331212, but he had undergone the assessment process and evidently
expected that he would pass the
assessment.
Contrary to his expectation,
on 11 December 2015, the plaintiff received a letter from the assessing
authority, Trades Recognition
Australia (“the TRA”) (which is part
of the Commonwealth Department of Education and Training), that he had not been
successful in obtaining a skills assessment as a carpenter. The letter stated
inter alia as follows:
“TRA could not verify your work statement from GoodSmile Australia as you have provided an address, landline telephone number and mobile telephone number which could not be linked to the business by TRA. If you intend to apply for a review or reapply, you need to provide certified copies of independently verifiable evidence to identify a link between the business address, landline telephone number and mobile telephone number and GoodSmile Australia. This may include certified copies of bills, links to online advertising and directory listings that show the address and telephone numbers are linked to the business.”
On 8 February 2016, an officer of the Department of Immigration and
Border Protection (“the Department”) emailed the
plaintiff a letter
requesting that the plaintiff provide certain information, including a skills
assessment, within 28 days. That
letter included the following
statement:
“We [the Department] prefer contact with this office concerning your application to be electronic via our website. We try to respond to all online enquiries within seven (7) working days.”
On or about 4 March 2016, the plaintiff received from the TRA a letter
dated 4 March 2016 acknowledging that the plaintiff had lodged
a Provisional
Skills Assessment (PSA) Review application. Relevantly, the letter stated as
follows:
“Thank you for your Provisional Skills Assessment (PSA) Review application. This letter acknowledges that Trades Recognition Australia (TRA) has received your PSA Review application.
Your review application and any documentary evidence you have provided in support of your review, will be assessed against the requirements of the Provisional Skills Assessment. This assessment will also consider all evidence supplied within your initial application.
When we have finished assessing your application you will be sent a letter advising you of the assessment outcome. Most applications will be assessed within 30 working days of the receipt of your evidence.
Information about TRA assessment programs is available from TRA’s website at: www.tradesrecognitionaustralia.gov.au.”
On 6 March 2016, in accordance with the Department’s documentary instructions, the plaintiff uploaded a copy of the TRA letter of 4 March 2016 in the lodgement details section “Skills Assessment, Evidence of Intention to Obtain” of his online “ImmiAccount” on the Department’s website.
On or about 18 March 2016, the plaintiff received from the Department a letter dated 18 March 2016 notifying him that his application for visa had been refused because he had not satisfied the provisions of the Migration Regulations 1994 (Cth). The letter enclosed a Decision Record, also dated 18 March 2016.
On
24 March 2016, the plaintiff received a letter from the TRA notifying him
that his Provisional Skills Assessment Review application
had been successful
for the occupation of Carpenter 331212. The plaintiff forthwith supplied a copy
of that notification by email
to the Department with a request for
reconsideration of his application for visa. In his email to the Department he
stated:
“The review acknowledge letter stated that the review process would take up to 30 working days, which I believed it is reasonable ground if I could be given more time to provide the skill assessment. The waiting time was out of my control and I have tried my best to provide more evidence such as photos, Tax record, client feedback (which took me a month to do so).
I do know the immigration department is busy and it is totally at your discretion to wait or not to wait for my review outcome.
However, I have followed the procedures by TRA and immigration department. I have provided documents by due dates. I have made all payments required for the application. And unfortunately, the successful outcome was granted 6 days after receiving your refusal notice.”
On 26 March 2016, the plaintiff received from the Department an
automated email response thanking him for his email and stating among
other
things as follows:
“If you are submitting documents in response to an information request
letter, please try to gather ALL the required documentation
or as much of it as
possible and upload (or email if unable to upload) these documents before the
due date.
On 6 April 2016, the plaintiff
received from the Department a response advising that it could not revisit a
decision but that the
plaintiff could make an application to the Administrative
Appeals Tribunal (“the AAT”).
The plaintiff, who at all relevant times has been selfrepresented, applied to the AAT for merits review of the delegate’s decision. Having calculated the period within which to apply to the AAT by reference to “his previous experience” rather than calendar days, the plaintiff was out of time in his application to the AAT. On 11 April 2016 the plaintiff called the AAT and was advised by a member of staff that “the case would be checked and [the AAT] would write to [the plaintiff] if [the AAT] still find[s] there is a jurisdiction issue, this being in weeks rather than months”. As the plaintiff was one day late in filing the application, the AAT determined on 2 June 2016 that it had no jurisdiction to deal with the matter[1].
On 1 July 2016, the plaintiff filed an application for judicial review of the delegate’s decision in the Federal Circuit Court of Australia, unaware that the only court which has jurisdiction to review a primary decision under the Migration Act is this Court[2]. On 19 July 2016, the Minister filed a Response in the Federal Circuit Court in which the Minister contended inter alia that the Federal Circuit Court lacked jurisdiction to review the delegate’s decision. The plaintiff, having consulted the Federal Circuit Court website, concluded that the Federal Circuit Court did have jurisdiction to review administrative decisions, and so did not comprehend the true significance of the Minister’s contention. Thereafter, the matter stood in the lists of the Federal Circuit Court awaiting hearing.
On 6 July 2018, the Minister filed written submissions in the Federal Circuit Court, expanding on his Response, to the effect that it was well established by authority that only the High Court had jurisdiction to review the decision of a primary decisionmaker. As a result, on 17 July 2018, the plaintiff discontinued the proceeding.
On 15 August 2018, the plaintiff filed an Application for a Constitutional Writ in this Court (which was later amended on 18 January 2019).
On 16 August 2018, the Minister’s solicitor sought, and obtained, an order that the plaintiff pay the Minister’s costs of the proceeding in the Federal Circuit Court in an amount of $5,044.
Section 486A of the Migration Act relevantly provides that an application to this Court for a remedy to be granted in exercise of the Court’s original jurisdiction in relation to a migration decision must be made to the Court within 35 days of the date of the migration decision, but that the Court may, by order, extend that 35 day period as it considers appropriate if an application for that order has been made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order and the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The plaintiff has applied in writing for an order for extension of time specifying why he considers that an extension is necessary in the interests of the administration of justice, and I am satisfied that it is necessary in the interests of the administration of justice to do so.
The principal considerations are the length of the delay, the reason for the delay, whether there is an arguable case and the extent of any prejudice to the defendant[3]. Here, I consider that there is a satisfactory reason for the delay and, as will be seen, I regard the plaintiff’s case as compelling.
Although the delay was in one sense the fault of the plaintiff, it was the product of his understandable ignorance of the arcane complexities and interrelationship of merits review and judicial review under the Migration Act. It is also clear that he was assiduous in the prosecution of his claim for a visa, and that it was only because of the difficulties that he encountered at each step of the way that there has been such a substantial delay in proceedings reaching this Court. Notable among those difficulties was his inability to comprehend the significance of the Minister’s contention, as it was pleaded in the Minister’s Response, that the Federal Circuit Court lacked jurisdiction to deal with the matter. As a consequence, some 745 days passed before the plaintiff came to understand the real nature of the jurisdictional difficulty he faced, and was then compelled to pay more than $5,000 of costs thrown away as a consequence.
The plaintiff’s sole ground of application is that the delegate acted with legal unreasonableness in proceeding on 18 March 2016 to make a decision to reject the application for visa rather than wait for the TRA to assess the review application for the plaintiff’s nominated skilled occupation of carpenter. As has been seen, it was only six days later that the review application was determined in the plaintiff’s favour.
In effect the plaintiff submits that, given that the delegate was on notice from 6 March 2016 that the TRA was reviewing the plaintiff’s skills assessment, and that the review would likely take no more than 30 days to complete, and given what may fairly be described as the admission constituted of the statement in the Department’s automated email of 26 March 2016 that the delegate understood that it could take more than 28 days for the TRA to complete an assessment, no reasonable decisionmaker would have proceeded without waiting the 30 days unless there were good reason to do so, and there was none. The plaintiff’s case, therefore, is in effect that this is one of those relatively rare cases in which the circumstances in which a decisionmaker’s failure to wait before making a decision presents as so arbitrary as to be unreasonable[4].
The Minister contended to the contrary that there was an evident basis for the delegate proceeding to determine the application without waiting the extra time, inasmuch as the delegate was under a statutory obligation to consider the visa application, subdiv AB of Div 3 of Pt 2 of the Migration Act created a “Code of procedure for dealing fairly, efficiently and quickly with visa applications”[5] and, although the delegate was provided with the letter from TRA of 4 March 2016, which notified the plaintiff of the pending review, it was not apparent that the plaintiff specifically requested the delegate to defer making a decision until the TRA’s review was completed. Further, according to the Minister, although the letter from the TRA stated that “[m]ost applications will be assessed within 30 working days of the receipt of your evidence” there was nothing to suggest that the delegate was made aware of when the plaintiff’s evidence was submitted to the TRA or how long it might be before the review would likely be concluded. In particular, in the Minister’s submission, it was not apparent that the plaintiff provided the delegate with any “submission” or information that would provide a basis for the delegate to be satisfied that the review had a reasonable prospect of success or even any information about the likely issues relevant to the review. Moreover, as the Minister would have it, the plaintiff was on notice from receipt of the Department’s letter of 8 February 2016 that the delegate could proceed to make a decision within 28 days if the relevant information was not provided. And, according to the Minister, the delegate could more comfortably proceed to reject the application for visa, despite being aware that the TRA review was pending, because the delegate would have known that, if the TRA review were successful, it would be open to the plaintiff to rely on it on an application for merits review before the AAT[6].
It is appropriate to take those submissions in turn. Beginning with the first, I see little of significance in the fact that the plaintiff did not specifically request the delegate to defer making a decision until the review had been completed. Judged according to the standards of an honest and reasonable decisionmaker - in much the same way that the effect of contractual correspondence is judged by reference to the standards of honest and reasonable business people[7] - it appears to me that it was necessarily implicit in the plaintiff’s act of furnishing the TRA letter to the delegate that the plaintiff was requesting that the delegate stay her hand until the review had been completed. After all, why else would the plaintiff go to the trouble of providing the letter if not to explain that the necessary skills assessment could not be provided until the TRA review had been completed, and that it was likely to be completed within 30 days?
Secondly, it is not correct that the delegate was not made aware of when the plaintiff’s evidence was submitted to the TRA, or of how long it might be before the review was expected to be completed. By the express reference in the TRA letter of 4 March 2016 to “any evidence you have provided” the TRA letter conveyed that the evidence which the TRA would be considering on the review was any evidence which had been provided before the letter was written, and that the probability was that the review would be completed within 30 days.
It is true that the plaintiff did not provide the delegate with a “submission” as to whether the review had a reasonable prospect of success, or information about the issues relevant to the review. But if those were matters which the delegate really considered to be significant considerations - and it is notable that there is no suggestion of that in the Decision Record - they are matters which the delegate could readily have ascertained by making an obvious inquiry of the plaintiff as to the matters in issue and the plaintiff’s assessment of his chances of success[8]. And as has been seen, if the delegate had made such an inquiry, she would have learnt that the plaintiff was initially unsuccessful in his TRA application only because he had provided a business address and telephone numbers that could not be “linked” to the business, and of the plaintiff’s efforts in addressing those matters, as explained to the Department in his email of 26 March 2012. Given the plaintiff’s origins, occupation and attributes, of which the delegate was well aware, the delegate cannot reasonably have supposed that the plaintiff would appreciate the need for or desirability of making a “submission” in support of his application, or that his failure to do so was in some sense forensically significant.
Nor am I much impressed by the idea that it was a relevant consideration in determining to proceed to decision, despite knowing that the TRA review was on foot and likely to be completed within 30 days, that the plaintiff might be able to rely on the results of a successful TRA review at any subsequent application for merits review before the AAT. In the absence of authority to the contrary, and counsel for the Minister was unable to point me to any, I cannot conceive of it being an excuse for an administrative decisionmaker to act unreasonably that the consequences of his or her failure to act reasonably might be capable of being patched up on merits review. Rather, as it appears to me, it would be an abrogation of administrative responsibility which is not to be encouraged.
I do not suggest that the Minister is bound in all
circumstances to wait until a TRA review application has been completed.
Plainly,
it is a question of fact and degree dependent on the circumstances of
each case. No doubt, in some cases, a delegate may well reasonably
consider
that there are good reasons for proceeding immediately to make a decision
despite a pending review. But here there is nothing
in the Decision Record
which suggests that the delegate even turned her mind to the possibility of
waiting the relatively short time
it was likely to take for the TRA to complete
its review. Relevantly, the Decision Record stated that the reasons for refusal
were
these:
“On 8 February 2016, you were requested by the department to provide a skills assessment for your nominated occupation. The relevant assessing authority is the Trades Recognition Australia (TRA) for this application.
On 6 March 2016, you provided a letter from TRA dated 4 March 2016. The letter acknowledged that TRA had received your Skills Assessment review application. As your initial Skills assessment was unsuccessful, you do not meet the Skill Assessment requirements of your nominated occupation of Carpenter ANZSCO code 331212.
To date, you have not provided any evidence of a successful skills assessment. Therefore, as no evidence has been provided to show that you have had your skills assessed by the relevant body as being suitable for your nominated occupation, I find that you do not satisfy the requirements of Regulation 485.224.p
There is nothing in that which in terms or by implication accepts or rejects that there was an obvious and compelling reason to delay - namely, that it could well mean the difference between success and failure for the plaintiff - or which suggests that the decision to proceed immediately was based on any balancing of relevant legislative factors. For all that appears from the Decision Record (and there is no other evidence to the contrary) the delegate entirely failed to engage with the possibility of delaying her decision until the likely completion of the TRA review within the next 30 days. So to approach the matter, reflects a degree of insouciance which surely cannot be regarded as an acceptable discharge of the statutorily implicit requirements of the decision-making function. To adopt and adapt the language of French CJ in Li[9], it bespeaks a degree of arbitrariness which renders it legally unreasonable.
In the result, I reject the Minister’s submission that there was an evident basis for the delegate proceeding to determine the application without waiting the time required for completion of the TRA review[10]. In my view, it was not open for a reasonable decisionmaker to act in that manner in the circumstances of this case. I consider that the delegate acted with legal unreasonableness in adopting the course she did.
It will be ordered accordingly that the delegate’s decision be quashed and that the Minister be directed to determine the plaintiff’s application for visa according to law.
The Court will now adjourn.
AT 9.26 AM THE MATTER
WAS ADJOURNED
[1] Migration Act 1958 (Cth), s 476.
[2] MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601; [2008] HCA 28.
[3] Jackamarra v Krakouer (1998) 195 CLR 516 at 520-521 [5] per Brennan and McHugh JJ, 542-543 [7] per Kirby J; [1998] HCA 27; Re Commonwealth of Australia (Department of Defence); Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470 at 474 [15] per McHugh J; [2000] HCA 67; 177 ALR 491 at 495; [2000] HCA 67.
[4] Minister for Immigration and Border Protection v Li (2013) 249 CLR 332; [2013] HCA 18.
[5] See Re Minister for Immigration and Multicultural Affairs: Ex parte Miah (2001) 206 CLR 57 at 68 [28] per Gleeson CJ and Hayne J; [2001] HCA 22.
[6] Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at 328 [143] per Kiefel J.
[7] See Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 at 179 [40] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; [2004] HCA 52; Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 420; [1968] HCA 8.
[8] See and compare Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at 1129 [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; [2009] HCA 39; 259 ALR 429 at 436 ; [2009] HCA 39; Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 at 39-40 [49] per Nettle J; [2015] HCA 51.
[9] [2013] HCA 18; (2013) 249 CLR 332 at 352 [31].
[10] See and compare Minister for Immigration and Border Protection v Li (2013) 249 CLR 332; [2013] HCA 18; Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713; 357 ALR 408; [2018] HCA 30.
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URL: http://www.austlii.edu.au/au/cases/cth/HCATrans/2019/43.html