Patel v Minister for Immigration - [2015] FCCA 1502

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATEL & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1502

Catchwords:

MIGRATION – Skilled visa – positive skills assessment based on bogus document – employment reference found to be fraudulent – skills assessment revoked by relevant assessing authority – Public Interest Criterion 4020 not met by applicants – visa refused – review of decision of Migration Review Tribunal (“Tribunal”).

ADMINISTRATIVE LAW – Allegation that the Tribunal fell into jurisdictional error – whether Tribunal erred in its interpretation of Public Interest Criterion 4020 – whether the Tribunal failed to comply with the requirements of s.359A of the Migration Act 1958 – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.97, 359AA, 359A, 424A,

Migration Regulations 1994 (Cth), cls.485.211 and 485.224 of sch.2, item 4020 of sch.4

Singh v Minister for Immigration & Border Protection [2014] FCA 850
SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190
Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109
Trivedi v Minister for Immigration & Border Protection (2014) 220 FCR 169

First Applicant:

NILESHKUMAR JAYANTILAL PATEL

Second Applicant:

NIDHI NARENDRAKUMAR KHATRI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 401 of 2015

Judgment of:

Judge Smith

Hearing date:

28 May 2015

Date of Last Submission:

28 May 2015

Delivered at:

Sydney

Delivered on:

5 June 2015

REPRESENTATION

Solicitor for the Applicants:

Mr M. Jones, Parish Patience Immigration Lawyers

Counsel for the First Respondent:

Mr M.J. Smith

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 401 of 2015

NILESHKUMAR JAYANTILAL PATEL

First Applicant

NIDHI NARENDRAKUMAR KHATRI

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the second respondent (“Tribunal”) made on 22 January 2015. That decision was to affirm a decision of a delegate of the first respondent (“Minister”) to refuse to grant the applicants Skilled (Provisional) (Class VC) visas.
The applicants, who are husband and wife, applied for the visas on 28 March 2009. It was a criterion for the grant of the visa that the skills of the applicants for the applicants’ nominated skilled occupation had been assessed by the relevant assessing authority as suitable for that occupation: cl.485.221(1) of sch.2 to the Migration Regulations 1994 (“Regulations”). Only the first applicant sought to satisfy this criterion. He did so by relying upon a letter from Trades Recognition Australia (“TRA”) dated 11 March 2009. In that letter TRA indicated that the first applicant’s application for skills assessment in relation to an occupation as nursery person was successful and that that success was based upon evidence provided by the first applicant that he had satisfied 900 hours of directly related work experience.
In August 2009, TRA wrote to the first applicant in reference to its skills assessment and stated:
…The documentation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FCCA 1502
Decision Date: 5 June 2015

CaseChat Overview and Summary

The applicants, Mr and Mrs Patel, sought judicial review of a decision by the Migration Review Tribunal (the Tribunal) to affirm the refusal of their skilled visa application. The refusal was based on the applicants failing to satisfy Public Interest Criterion (PIC) 4020, as the skills assessment upon which their application relied had been revoked by the relevant assessing authority due to the discovery that an employment reference provided was fraudulent.

The central legal issues before the Court were whether the Tribunal had fallen into jurisdictional error. Specifically, the Court was required to determine if the Tribunal had erred in its interpretation and application of PIC 4020, and whether it had failed to comply with the requirements of section 359A of the *Migration Act 1958* (Cth).

Justice Smith found that the Tribunal had not erred in its interpretation of PIC 4020. The Tribunal correctly understood that the criterion required the applicants to satisfy the Minister that they had not been the subject of a previous visa refusal or cancellation based on a bogus document, or that they had not provided bogus documents in support of their current application. The Tribunal's finding that the employment reference was fraudulent, leading to the revocation of the skills assessment and thus the failure to meet PIC 4020, was a factual determination open to it. Furthermore, the Court held that the Tribunal had complied with its obligations under section 359A of the *Migration Act 1958* (Cth) by considering all the issues arising from the application and by providing adequate reasons for its decision.

Consequently, the application for judicial review was dismissed.

Orders