Kaur v Minister for Immigration

[2013] FCCA 1010

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1010

Catchwords:
MIGRATION – Application for judicial review of decision of Migration Review Tribunal – Indian nationals – husband and wife – no jurisdictional error revealed – application dismissed – no matter of principle.

Legislation:  
Migration Act 1958 (Cth)

First Applicant: KULPEEP KAUR

Second Applicant: AMANDEEP SINGH

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 329 of 2012

Judgment of: Judge Simpson

Hearing date: 23 July 2013

Date of Last Submission: 23 July 2013

Delivered at: Adelaide

Delivered on: 12 August 2013

REPRESENTATION

The Applicants: In person

Counsel for the Respondents: Mr d'Assumpcao

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The applicants do pay the first respondent’s costs fixed in the sum of SIX THOUSAND, FOUR HUNDRED AND SEVENTY ONE DOLLARS ($6,471.00).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 329 of 2012

KULPEEP KAUR

First Applicant

AMANDEEP SINGH

Second Applicant

And

MINISTER FOR IMMIGATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. I have applications before me brought under the Migration Act 1958 (Cth) for the review of the decisions of the Migration Review Tribunal.

2. The Tribunal affirmed a decision of the delegate of the Minister of Immigration & Citizenship not to grant the applicants skilled (Provision Class VC) visas.

3. When the matter was called on both applicants appeared in person. They did not have legal representation.  They indicated they did not need the services of an interpreter.

4. I satisfied myself that the applicants had the opportunity of reading the written submissions that were filed on behalf of the first respondent and that they had read the green covered court book filed by the first respondent.

5. The parties indicated that they wished to rely on a brief affidavit affirmed by the first applicant. That affidavit annexed a copy of the decision record from the Tribunal. The deponent said in the body of the affidavit that “my lawyer never provide us (sic) necessary document information regarding this case, so we provided required document to MRT so we request to you please review our case behalf (sic) request of us.”(SCR)

6. The submissions that were put by each of the parties reiterated the message that is contained in the affidavit of the first applicant as detailed above.

7. To the extent that is permissible, I attempted to assist the applicants with their submissions by explaining to them what was required and what was not required. Unfortunately, but perhaps understandably, their submissions were not of great assistance.

8. The application filled by the applicants indicated that they intended to provide the Court with evidence. I raised this with the parties and was told that they were content to have the matter dealt with on the basis of the material in the green book and the affidavit earlier referred to.

9. As is invariably the case, counsel for the first respondent provided the Court with a detailed Outline of Submissions dealing with the background to the case including details of both the Delegate’s and the Tribunal’s decisions. I have satisfied myself that this background material is accurate. I propose to incorporate paragraphs 2-17 of the first respondent’s submissions in these reasons:

   “2.For the following reasons, the Minister submits that the Application should be dismissed with costs.

   3.The applicants, who are husband and wife, are citizens of India. They arrived in Australia on 11 July 2008 as holders of Student (Temporary) (Class TU), subclass 573 Higher Education Sector, visas. Those visas ceased on 28 July 2010.

   4.On 22 July 2010, the First Applicant, Ms Kuldeep Kaur, lodged an application for a Skilled (Provisional) (Class VC) visa on behalf of both Applicants. The application form indicated that they wished to be considered for the grant of a Skilled-Graduate, subclass 485, visa.

   5.On 11 October 2011, the Delegate of the Minister sent a letter to the First Applicant requesting additional information. On 24 October 2011, the Applicants’ migration agent sent an email to the Delegate seeking an extension of time to provide the requested material. The Delegate refused that request.

   6.On 14 March 2012, the Applicants’ representative furnished the Delegate with additional documents in the nature of an Australian Federal Police clearance certificate and a medical report relating to the pregnancy of the First Applicant. Later that day, the Delegate sent the representative an email. The email stated:

   “Hello Gunjan,

   I note that you [sic] client still has a skills assessment and evidence of Competent English outstanding. I am not prepared to extend the time allowed to supply these documents. I am now in a position where I am going to make a decision on the information I have before me.

   Please supply me with any skills assessment or evidence of Competent English ability that your client may have. I expect to make a decision on this case by the end of the week.

   ….”

   7.The representative replied by email a few hours later, stating, in part: ‘The client is not able to provide the necessary documentation. You many proceed to take the decision on the file’.

   8.In a decision record dated 16 March 2012, the Delegate refused the applications.

   9.On 5 April 2012, the applicants applied for review for the Delegate’s decision by the Tribunal.

   10.On 11 October 2012, the Tribunal invited the Applicants to appear before it to give evidence and present arguments relating to the issues arising in their case. The hearing was scheduled to take place on 13 November 2012, however, the Applicants did not attend the hearing. It was recorded on certain Tribunal case notes that:

   ·    At 12:07 pm, the Tribunal contacted the First Applicant. The Second Applicant then spoke to the Tribunal Officer, stating that he did not know anything about the hearing. The Second Applicant was advised that he needed to provide evidence of a skills assessment and ‘the competent English evidence’ by 20 November. The Second Applicant was advised that the Tribunal would proceed to a decision shortly thereafter.

   ·    At 1:35pm, the representative called to inform the Tribunal that he did not receive the hearing invitation.

   ·    At 2:10pm, the representative called the Tribunal and asked that a copy of the hearing invitation be emailed to him. An officer (sic) Tribunal officer subsequently did so.

   11.On 20 November 2012, the Second Applicant called the Tribunal and sought an extension to provide submissions (which were due that day). He claimed that his representative held all of his documents, and that he was unable to contact the representative and that he no longer wished to use the representative for the purpose of the review. The Second Applicant was told that any request for an extension of time needed to be in writing.

   12.On 22 November 2012, the Tribunal telephoned the Applicant and advised that the Tribunal member was prepared to extend the time for further information or submissions to Friday 23 November 2012.

   13.On 29 November 2012, the Tribunal affirmed the decision under review.

   14.On 18 December 2012, the Applicants applied for judicial review of the Tribunal’s decision in the Federal Magistrates Court (now the Federal Circuit Court).

   The Tribunals Decision

   15.The Tribunal set out the relevant law with respect to the criteria for the grant of a subclass 485 visa, in particular cl.485.215 (ie, that the Applicant has competent English) and 485.221 (ie, that the skills of the Applicant for the nominated skilled occupation have been assessed by the relevant assessing authority as suitable for the occupation): [8] –[16].

   16.The Tribunal’s decision record states its critical findings and reasons as follows:

   “30.  The issues in the present case are whether the applicant’s skills of her nominated skilled occupation has been assessed by the relevant assessing authority as suitable for that occupation, and whether the applicant has competent English.

   …

   32.    The Tribunal has considered whether the applicant’s skills has been assessed as suitable by the relevant assessing authority. When making the application the applicant had nominated the occupation of Graphic Pre-press Trades Worker (ANZSCO code 39221). That occupation is a skilled occupation set out in Legislative Instruments IMMI 12/068. The relevant assessing authority is specified in that Instrument as Trades Recognition Australia. The Tribunal notes that the application for the visa was made in July 2010, over two years ago, and in the Tribunal’s view, the applicant has had sufficient time to obtain the skills assessment, which she knew was one of the requirements for the grant of the visa for which she has applied having provided a copy of the delegate’s decision with the application for review. The applicants were offered a hearing and did not attend. The applicants were contacted by the Tribunal because of the failure to attend and the second named applicant claimed that their representative did not advise them of the hearing. The Tribunal provided additional time, on two occasions, to present any futher evidence or arguments in support of their application but they did not submit any such materials. In these circumstances, the Tribunal determined that it would proceed to the decision.

   …

   34.    The Tribunal is not satisfied on the evidence before it that the applicant’s skills has been assessed as suitable by the relevant assessing authority, Trades Recognition Australia, for her nominated occupation of Graphic Pre-press Trades Worker (ANZSCO code 392211). Therefore, the Tribunal is not satisfied that the applicant meets the requirements of cl.485.221.

   35.    Having found that the applicant cannot meet an essential criteria for the grant of the visa, the Tribunal has not proceeded to consider whether the applicant has ‘competent English’ and therefore whether she can meet cl.485.215.

   36.    The other visa subclass in Class VC is subclass 487 (Skilled-Regional Sponsored). At the time of the application, the applicants paid the application fee of $235 and not the fee of $2,575 for an applicant seeking to satisfy the criteria for the grant of a Subclass 487 visa. As such, the applicants did not meet item 1229(2)(a)(iii) of Schedule 1 to the Regulations and therefore did not make a valid application for the Subclass 487 visa.

   37.    There is not claim or evidence before the Tribunal to indicate that the send named applicant can meet the essential criteria for the grant of a visa within the Class VC, and accordingly, the decision under review must therefore be affirmed in relation to the second named applicant.”

   17.The Tribunal concluded by affirming the decision not to grant the Applicants Skilled (Provisional) (Class VC) visas.”

Decision

1. In their application filed on the 18 December 2012, the applicants provided the following information under the heading grounds of application:-

   “(a)Evidence will be provided in Court;

   (b)My Lawyer never give us necessary information regarding this case, that is why we never provided proper document to MRT, reasons of this MRT refused our case, so request you please review our case once again, behalf our request.”

2. Clearly the “ground” does not reveal on its face any error of law let alone jurisdictional error.  In their submissions the applicants did no more than repeat what was contained in the information in the application under the heading grounds for application.

3. Clearly no jurisdictional error has been identified. As a result the application should be dismissed.

4. I make the orders to be found at the beginning of these reasons.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date:  12 August 2013