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Singh v Minister for Immigration & Anor [2019] FCCA 2862 (16 September 2019)

Last Updated: 9 October 2019

FEDERAL CIRCUIT COURT OF AUSTRALIA

REPRESENTATION

ORDERS

(1) The application filed 21 June 2017 be dismissed.
(2) The first respondent henceforth be referred to as “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
(3) The applicant pay the first respondent’s costs in the fixed amount of $5,000.

ADG 247 of 2017

Applicant

And

First Respondent

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
2. This is an application for judicial review of a decision of the Administrative Appeals Tribunal in two parts. A decision was made on 16 May 2017 to dismiss the applicant’s application for non-appearance. The applicant applied within the relevant time limit to have the application reinstated. On 1 June 2017 the Tribunal decided not to reinstate the application and the applicant has sought a review of those decisions.
3. The background is as follows. The applicant has completed a degree in mechanical engineering in Australia and on 23 September 2016 he applied for a temporary graduate (graduate work) visa nominating his skilled occupation as mechanical engineer.
4. One of the mandatory criteria for that visa is at clause 485.223 of schedule 2 of the Migration Regulations and that criterion is as follows:
   • 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.
5. It is common ground that the application was not accompanied by evidence that the applicant had applied for such an assessment. The delegate, or the departmental officer charged with considering the application, decided on 15 December 2016 that the visa application should be refused as the applicant had not satisfied or met one of the mandatory criteria for a grant of the visa.
6. The applicant sought to have that decision reconsidered by the Administrative Appeals Tribunal (“AAT”). On 22 December 2016 he applied to the AAT. On 18 April 2017 the Tribunal sent to the applicant at his email address a document that appears at page 36 of the court book, that is, an invitation to attend a hearing. The invitation made it clear that the hearing would take place on 15 May 2017 and it would be conducted by telephone, with the Tribunal member being in Melbourne.
7. The invitation, in the box on the first page, set out the date of the hearing;. it set out the time, 1 pm South Australian time, 1.30 pm Victorian time; it said by phone; and it went on to say as follows:
   • The number we have for you is 0449 179 252. Please advise if this is not the correct number, or if you would prefer us to call you on another number. Please note that you should arrange to be available for up to two hours.

It then said in the next paragraph:
Staff of the AAT will contact you close to the hearing time to ensure that the telephone connection is working.

8. Apparently, judging by the invitation reproduced in the court book, there was a document called “Response to Hearing Invitation, MR Division form”, also included with the letter. It seems implicit that the applicant was invited to complete that form and send it back to the Tribunal. However, the form is not included in the court book, so what may have been included on that document, had it been sent back to the Tribunal, is unclear to me. It may have been the telephone number. I do not know. I really infer nothing from what is asserted to be the position by the Minister that the applicant did not return that form. That may or may not be. There is no real evidence of it beyond assertion and I do not make any finding about it.
9. The applicant said that shortly before he received that document (and when I said the applicant says, he says in an affidavit filed by him in this proceeding on 21 June 2017) that – and I read from part of paragraph 20:
   • Due to some confusion, the Tribunal was not able to contact me on the given date and time of hearing scheduled, though I was waiting for their call since morning. The reason behind the confusion is they kept on calling me on my previous mobile number, which has been disconnected days before. When I received my hearing date and time, emailed on 18 April. After receiving that mail on 18 of April, I immediately updated my new number on my eForm [but] I think they haven’t checked that form which was updated later.

And at paragraph 22:
On the basis of non-contact, my application for review was dismissed.

10. I am afraid I am unable to resolve the question of whether or not the applicant did as he says. For reasons I am about to give, I am satisfied that I do not have to, that it is not necessary to resolve that. It would have been desirable given that allegation, for some person, ideally a departmental officer, to have reviewed the forms in the possession of the department and to say whether or not there was any evidence that the applicant had, using an “eForm”, whatever that might be, advised the department of his new telephone number.
11. As the matters stand at the moment that is unaddressed by the department and I have an assertion by Mr Singh that that is something he did; an assertion that he has included in an affidavit that he has affirmed and filed. I do note, without making any factual finding about the matter, that in the reasons given by the AAT for dismissing the reinstatement application on 1 June, the AAT says- and I am reading from page 3 of the decision:

The applicant subsequently applied for reinstatement after receiving notification that his application had been dismissed and stated that his mobile phone number that was provided to the Tribunal in his review application was disconnected days before he received the hearing invitation letter and that he updated his new letter on his e-form. The Tribunal checked its records and finds that the applicant did not inform the Tribunal that he changed his mobile telephone number. The only review e-form received by the Tribunal was the one the applicant lodged on 15 December 2016. The applicant did not provide any evidence that he did, in fact, inform the Tribunal of change of his mobile number at any stage prior to the scheduled hearing.

12. I have given some thought to how I can resolve that issue because I am prepared to accept that if Mr Singh’s assertion in his affidavit is correct, then, arguably, he has been deprived of procedural fairness by reason of some probable error in departmental record-keeping or processes that through no fault of his own has deprived him of the opportunity to be heard in support of his application and that that would, if it was the case, amount to a denial of procedural fairness.
13. I asked Mr Singh today whether there was any documentation that he might have which would support his claim that he had provided an up-to-date telephone number on the e-form around about 18 April 2017 and he said that he was unable to provide any documentary or independent evidence that that had occurred. Ordinarily, on an application of this kind the onus would be on the applicant to show that there had been an error of that kind. He has asserted in an affidavit that there was such an error. Regrettably, the Minister has not filed any affidavit material to rebut that claim or rebut that assertion. I think in the circumstances, I should proceed on the basis that Mr Singh’s claim is correct and, accordingly, I am prepared to proceed on the basis that he did update his telephone number but through some omission or error in the department, the AAT, when it undertook its search or its inquiry into its records referred to in the decision, was genuinely in error.
14. Mr Cummings who appears for the Minister says that nevertheless I should dismiss the application on the basis that the error was not material. Although he did not directly refer to Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1, he may have been intending to direct my mind to that decision or the older case of Stead v SGIC [1986] HCA 54; (1986) 161 CLR 141 where the error could not have made any difference to the outcome. As I understood Mr Cummings’ submission he said that given that the application was for a temporary graduate (graduate work) visa and it is accepted by Mr Singh that he did not provide a skills assessment, then the delegate and the Tribunal could not have made any other decision but reject the application because Mr Singh failed to comply with a mandatory requirement. I accept that submission and it appears to me that there was such a mandatory requirement and Mr Singh did not satisfy it.
15. Mr Singh has told me today, and indeed he suggests the same thing in his affidavit filed on 21 June, that he has since completed a skills assessment and has received a positive result in his nominated occupation. The skills assessment is not in evidence but Mr Singh told me that he obtained that skills assessment in June 2018, not quite two years after his application in September 2016.
16. Mr Cummings in his submission relies on Full Court of the Federal Court’s decision in Khan v the Minister for Immigration and Border Protection [2018] FCAFC 85 at paragraphs 15 and 18 where it was held by Tracey J, with the other members of the Court agreeing, that:

The clause [clause 485.223] 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.

17. While the outline does not refer to it, there is another decision of Charlesworth J, Kaur v Minister for Immigration and Border Protection [2018] FCA 1765, to the effect, if I recall correctly, that the requirement in clause 485.223, or it may have been a very similar or equivalent clause, requiring documentation to accompany an application, required some, as Khan says, some temporal proximity, if I can put it that way. Her Honour said that while the documentation could come slightly later it nevertheless needed to “accompany” the application and indicated that anything other than a relatively small delay in providing the document would be a failure to satisfy the requirement.
18. I am satisfied that is the case here. Notwithstanding that Mr Singh now has a positive skills assessment some 21 months after his application, on no interpretation that I am aware of in the case law would that satisfy the requirement that the skills assessment accompany the application. I am satisfied that the fact that a skills assessment has subsequently been obtained but a long time after the application does not assist Mr Singh.
19. The other argument Mr Singh made was that he really made an error in the form of visa he applied for. When he applied for his visa in 2016 he did not actually intend to apply for a graduate work visa or a temporary graduate work visa but he intended to apply for a temporary graduate post-study work visa. He asserted from the bar table that that kind of visa did not require the provision of a skills assessment. That may be. I make no finding about that and I am satisfied that, largely, that position is irrelevant.
20. At no point, from my reading of the documents until the application to this Court did Mr Singh raise the argument that he made an error and really intended to apply for another visa altogether or a different visa. I raised with Mr Singh that he had not apparently taken any steps to apply for the visa that he intended to apply for and he told me that it was apparent when he received the decision of the delegate on 5 December 2016 that he meant to apply for another kind of visa but if that is the case, he has really done nothing to pursue that other visa.
21. It may be that for some reason that he has not told me about he could not have done that. I simply do not know. The decision-makers, both the delegate and the AAT, have proceeded on the basis (and I am satisfied that they were entitled to proceed on that basis) that the visa Mr Singh sought was a temporary graduate (graduate work) visa, not some other kind of visa. In my view, given that Mr Singh was always unable to satisfy the mandatory criterion of the provision of the skills assessment, then the decisions they made were inescapable. The decision-makers could not have made any other decision.
22. That being the case, while I am prepared to accept Mr Singh’s claim that some error must have been made in the processes of the department, in my view, any denial of procedural fairness cannot have deprived Mr Singh of the possibility of a successful outcome. So whether the matter is approached on the basis of the decision of the High Court in Hossain that materiality is an aspect of jurisdictional error or on the older basis to refuse relief if the outcome could not have been different the outcome is the same. On the first basis I would not be prepared to find that there has been a material error, an error of the kind for which there was any possibility of a different outcome, and on the second basis, I would not exercise my discretion in favour of quashing the decision because I am satisfied that the outcome could not have been different.
23. For those reasons the application is dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate:

Date: 8 October 2019