KUMAR v Minister for Immigration

[2015] FCCA 3058

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3058

Catchwords:
MIGRATION – Judicial review – skilled visa – no jurisdictional error established.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Regulations1994 (Cth), cl.485.214

Applicant: VINAY KUMAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 2661 of 2014

Judgment of: Judge Harland

Hearing date: 19 October 2015

Date of Last Submission: 19 October 2015

Delivered at: Melbourne

Delivered on: 19 October 2015

REPRESENTATION

The Applicant: Appeared in person

Counsel for the Respondents: Mr Hutton

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. That the application be dismissed.

2. That the applicant pay the first respondent’s costs in the sum of $2,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2661 of 2014

VINAY KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a show cause hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth). The Rules clearly provide that the applicant is limited to relying on material already filed and the issue for the Court to determine today is whether or not the applicant has disclosed an arguable case for relief. The application for review does not disclose any ground for jurisdictional error. It essentially invites the court to conduct a merit review. It is clear that the applicant was not happy with the decision of the Tribunal.

2. The application was filed on or about 29 December 2014. The applicant has not filed any submissions in accordance with the directions made by a Registrar. The decision by the Tribunal is clear. The applicant had applied for a skilled visa and had nominated the category of motor mechanic. The Tribunal decision records that the applicant told the Tribunal that that was in error and that he had meant to nominate as a cook. 

3. The Tribunal specifically states that it did not need to resolve that issue because the applicant failed to produce any evidence that he had applied for a skills assessment prior to applying for his visa application. The regulation under the Migration Regulations 1994 (Cth), in particular, clause 485.214 requires the applicant to apply for a skills assessment prior to lodging the visa application. That requirement is very clear.  It does not matter if the applicant has completed a skills assessment since that time, because the crucial date is prior to the visa application being filed. 

4. By the time the matter came before the Tribunal for review, the applicant had filed the visa application almost three years before.  It is apparent from the Tribunal decision that the evidence of the applicant before it was somewhat confused concerning whether or not he had lodged an application for a skills assessment prior to lodging his application for a visa in 2011. The Tribunal gave the applicant a few days to provide such evidence that he had applied for a skills assessment prior to 11 May 2011. That is clear from paragraph 17 of the decision, where it notes that it gave the applicant until 5 December 2014 to provide that evidence. The decision is dated 8 December 2014.

5. The Minister readily acknowledges that the timeframe for providing the information was short, but given the delay in the matter to date and given that the applicant’s evidence was at best equivocal about whether or not he had such a document, it was not unreasonable in the circumstances. The applicant says that he did send the material to the Tribunal by registered post, but it did not arrive in time. The Minister says that the Department record does not show any correspondence being received. 

6. The applicant said before this Court that he now has all the documents required and sought more time to put those documents before the Court.  That would invite the Court to engage in a merit review, which it expressly cannot do.  The purpose of the review is to assess whether or not the Tribunal has made some sort of jurisdictional error, based on the material before it at the time. It was inevitable that the Tribunal would dismiss the application, because there was no evidence that the applicant had complied with the regulations. In those circumstances, there is no jurisdictional error and the Tribunal decision should stand. 

7. The Minister seeks costs in the sum of $2,200, which is less than the amount provided in the Court scale. In the circumstances, it is appropriate to make that order. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date: 17 November 2015