Nayani v Minister for Immigration

[2015] FCCA 1684

FEDERAL CIRCUIT COURT OF AUSTRALIA

NAYANI v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1684

Catchwords:
MIGRATION – Migration Review Tribunal – Skilled Independent (Permanent) (Class SI) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Show cause hearing – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001 r.44.12

Applicant: NOOR ALI NAYANI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1288 of 2015

Judgment of: Judge Street

Hearing date: 18 June 2015

Date of Last Submission: 18 June 2015

Delivered at: Sydney

Delivered on: 18 June 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms S. Lloyd
Minter Ellison

ORDERS

1. The application be dismissed under Rule 44.12 of the Federal Circuit Court Rules 2001.

2. The applicant pay the first respondent’s costs fixed in the sum of $2500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1288 of 2015

NOOR ALI NAYANI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 10 April 2015 affirming a decision not to grant the applicant a Skilled Independent (Permanent) (Class SI) visa.

2. The applicant was sent an invitation to apply for a general skilled migration visa and, relevantly, in that application the applicant disclosed his skills assessment as having been made on 26 August 2010.

3. The application was rejected by the delegate on 11 November 2014 because the applicant failed to meet the requirements of cl.189.212(c) and (d) and that is because his assessment was more than three years out of date.

4. The applicant understandably regards the error in the sending of the invitation to him in circumstances where he had disclosed the date of his skills assessment as to be an unsatisfactory course and contends that it is a matter which other persons may have been equally adversely affected in relation to invitations to apply for a visa.

5. The error in relation to the application, if it is properly characterised as an error, is not one that gives rise to any entitlement to overcome the requirements of cl.189.292 and does not establish any jurisdictional error.  The first respondent moved for a show cause hearing on the basis that it was clear from what was said by the applicant in his own application in the grounds that he did not meet the requirements of cl.189.221(1)(c) or (1)(d).  The relevant findings made by the Tribunal are:

   10. Paragraphs (c) and (d) of cl.189.212(1) provide that for visa applications made after 1 July 2014, no more than 3 years has passed since the date of the assessment, or if a shorter period of validity was specified in the assessment period, the shorter period has not passed. Although the skills assessment from NIA states it is valid for 5 years, the skills assessment is dated 26 August 2010 and the time of invitation is 8 September 2014 and therefore the assessment was more than 3 years old by the time of invitation.

   11. The applicant told the Tribunal that prior to lodging the visa application he contacted lawyers who advised that he had no problems because he had a positive skills assessment. If he had received advice about the 3 year time limit he would not have lodged this visa but he needs to achieve a specified score in an academic IELTS test and he is currently studying for this test.

   12. The Tribunal has considered the available evidence and notes that the applicant’s skills assessment was valid for 5 years. However, the applicant’s skills assessment was valid for 5 years. However, the Tribunal finds that at the time of the invitation, more than 3 years has passed since the date of the assessment and therefore, the requirements of paragraphs (c) and (d) are not met and the applicant does not meet cl.189.212(1). On the basis of these findings, the applicant does not satisfy cl. 189.212.

   13. It follows that the applicant does not satisfy the criteria for the grant of a Subclass 189 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

   14. The Tribunal affirms the decision not to grant the applicant a Skill-Independent (Permanent) (Class SI) visa.

6. The applicant did not take issue with the proposition that he did not meet the requirements, but was clearly vexed and troubled by the sending of an invitation in the circumstances where he had candidly disclosed the nature of the date of the assessment that he had obtained.  There is nothing, however, in the application that discloses any arguable jurisdictional error by the Tribunal.  Whilst the court understands the applicant’s disappointment, having been invited to apply in circumstances where disclosure of the correct date of his skills assessment had been made by the applicant, it does not given rise to any legal entitlement that establishes any jurisdictional error by the Tribunal.

7. The application fails to disclose any arguable jurisdictional error and should be dismissed under r.44.12.

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

Associate: 

Date: 1 July 2015