FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1264 |
| Catchwords: MIGRATION – Review of Migration Tribunal decision – refusal of a Skilled (Provisional) (Class VC) visa – Skilled Graduate (485) – Applicant found to have furnished a work reference to Trades Recognition Australia that contained false or misleading information – No sustainable grounds in application – Application dismissed. |
| Legislation: Legislative Instruments Act 2003 (Cth), s.12 Migration Act 1958 (Cth), s.97 Migration Amendment Regulations 2011 (No.1) (Cth), regs.3, 5(2) |
| Applicant: | SATVIR KAUR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2959 of 2012 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 30 May 2013 |
| Delivered at: | Sydney |
| Delivered on: | 18 June 2014 |
REPRESENTATION
| Solicitor for the Applicant: | Mr N. Dobbie of Dobbie and Devine Immigration Lawyers Pty Ltd |
| Counsel for the Respondents: | Mr J. D. Smith |
| Solicitor for the Respondents: | Ms A. Lal of Sparke Helmore |
ORDERS
The name of the first respondent be amended to “Minister for Immigration and Border Protection”.
The application filed on 13 December 2012, and amended on 26 March and 8 April 2013, be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application as agreed or assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2959 of 2012
| SATVIR KAUR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) for judicial review of a decision of the second respondent, the Migration Review Tribunal (the “Tribunal”) dated 19 November 2012, being MRT Case Number 1110483, a decision of Tribunal Member K. Raif. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protections (at the time of the decision the Minister for Immigration and Citizenship) (the “Minister”) to refuse to grant the applicant a Skilled (Provisional) Class VC visa.
The solicitors for the first respondent were required to…
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- Kaur v MIBP [2014] FCCA 1264
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CaseChat Overview and Summary
The applicant raised four grounds of review. Primarily, she argued that the Tribunal misinterpreted or misapplied the law to the facts by finding that item 4020 applied to her application, contending that the relevant subregulation was invalid as it was retrospectively applied and thus unjust or oppressive. She also asserted that the Tribunal erred in finding her employment reference letter to be false or misleading in a material particular, arguing that the precondition of 900 hours of work experience, which the letter purportedly addressed, was not a valid requirement at the time. Further grounds included the Tribunal's failure to take into account a relevant consideration, namely the employment reference letter, and that the Tribunal's decision was arbitrary and lacked a reasonable basis. Finally, the applicant alleged the Tribunal failed to make a relevant enquiry into whether a modified interpretation of the reference letter would have altered the outcome of her skills assessment.
Lloyd-Jones J considered the applicant's arguments regarding the retrospective application of item 4020 and the validity of the 900-hour work experience requirement. The court examined the legislative framework surrounding item 4020 and the powers of the relevant assessing authority. The reasoning focused on whether the Tribunal correctly applied the law to the evidence before it, particularly concerning the assessment of the employment reference letter and its materiality to the applicant's skills assessment. The court analysed the Tribunal's findings in light of the applicant's submissions that the preconditions for the skills assessment were improperly applied.
The court ultimately found that the applicant had not established any grounds for judicial review. The application was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The Application pleads four grounds which state:1. The Second Respondent misinterpreted and or misspelled the law to the factsParticulars:…(ii) The Tribunal misinterpreted the applicable law or misapplied the law to the facts by finding that item 4020 applied to the Applicant:(a) Item 4020 was introduced and took effect on 2 April 2011 by virtue of r5 of the Migration Amendment Regulations 2011 (No.1) and items [3] and [4] of Schedule 3 of those amending regulations.(b) Subregulation 5(2)(a) and item 4020 of the amending regulations is invalid in so far as it purports to apply to an application already lodged before the item was introduced, because it is manifestly unjust and or oppressive and or is contrary to the intention of Parliament in relation to the use of the regulation making power it authorized for use by the First Respondent.(c) The Tribunal therefore misinterpreted the applicable law or misapplied the law by finding that the First Applicant has to satisfy item 4020.(iii) The Tribunal misinterpreted the applicable law or misapplied the law to the facts by finding that the employment reference letter given to it by the Applicant was ‘false or misleading in a material particular’ for the purposes of item 4020.Particulars(a) The employment reference letter related to a minimum of 900 hours of work experience, purportedly required by TRA as a standard precondition for a skills assessment. Because TRA was not empowered to set 900 hours of work experience as a standard precondition for a skills assessment at the time the assessment application was lodged, and even at the time it was granted, the employment reference letter could not have been false or misleading in a material particular.2. The Second Respondent failed to take into account a relevant considerationParticulars:(i) The Tribunal failed to take the employment reference letter into account.(a) The Tribunal erroneously found that the employment reference letter ‘did not correctly reflect the nature of the applicant’s employment because the applicant sis not work as a hairdresser, independently and performing the full range of hairdressing services, for the period claimed.’ The Tribunal subsequently found that the employment reference letter was objectively false or misleading in relation to the Applicant’s claimed work experience at Highlights Hair and Makeup Salon; and or(b) As a result of the way it failed to understand the employment reference letter, it did not have proper regard to it and therefore failed to take it into account before finding that the Applicant did not satisfy subitem 4020(1)3. The decision of the Second Respondent is arbitraryParticulars:(i) The decision of the Tribunal is arbitrary because it did not have any reasonable basis on which to determine whether the employment reference letter was false or misleading in a material particular for the purposes of the Applicant’s TRA skills assessment.4. The Second Respondent failed to make a relevant enquiryParticulars:(i) The Tribunal failed to make a relevant enquiry.(a) The Tribunal was required to make an enquiry if TRA whether the reference letter given to it by the Applicant, if read down as not reflecting 900 hours of work experience as a fully qualified hairdresser (which was the Tribunal’s approach), would have made a material difference in relation to whether it would have issued a positive skills assessment to the Applicant. Only then could the Tribunal determine whether the employment reference letter was ‘false or misleading in a material particular’ for the purposes of item 4020.