Patel v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PATEL v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 399

MIGRATION – Review of decision of Migration Review Tribunal – application for a Skilled Graduate visa – application of “Form 1023” to a nominated occupation – Tribunal’s findings reasonably open to it to make – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.105, 476
MigrationRegulations 1994 (Cth), Sch.1, Sch.2

Applicant: PRATIKKUMAR DINESHBHAI PATEL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 281 of 2011

Judgment of: Nicholls FM

Hearing date: 18 April 2011

Date of Last Submission: 18 April 2011

Delivered at: Sydney

Delivered on: 1 June 2011

REPRESENTATION

Counsel for the Applicant: Mr HPT Bevan

Counsel for the Respondents: Mr J Smith

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 21 January 2011 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 281 of 2011

PRATIKKUMAR DINESHBHAI PATEL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The application before the Court was made on 21 February 2011 under s.476 of the Migration Act 1958 (Cth) (“the Act”). It seeks review of, and relief in relation to, the decision of the Migration Review Tribunal (“the Tribunal”), made on 21 January 2011, to affirm the decision of a delegate of the respondent Minister to refuse the grant of a Skilled (Provisional) (Class VC, Subclass 485, Skilled Graduate) visa (“the visa”) to Mr Patel (“the applicant”).

Background

1. The relevant background is derived from the Court Book (“CB”) and is as follows. The applicant is an Indian national who first entered Australia in July 2006 as the holder of a student visa.

2. On 28 August 2008 the applicant applied for the visa (CB 1 to CB 11). He was assisted by a migration agent (CB 4).

3. The applicant provided relevant details, including that he had completed a masters degree in Australia (Central Queensland University) in “Master of Information System” (CB 9).

4. It was a criterion for the grant of the visa that the Minister be satisfied that, at the time of application, the applicant had applied to the relevant assessing body for an assessment of his skills for the nominated occupation for the purposes of the application. (See cl.485.214 to the MigrationRegulations 1994 (Cth) (“the Regulations”) as at the relevant time for this matter.)

5. In his application form the applicant had provided as the “Nominated Occupation”: “Family Counsellor” (CB 8.8).

The Delegate

1. On 16 April 2009 an officer in the Minister’s department wrote to the applicant requesting that he provide certain documents. These included a: “Skills Assessment for your nominated occupation and proof that you had applied for your Skilled Assessment before lodging your visa application on 28 August 2008.” (CB 20.5.)

2. The applicant’s agent responded on the same day and provided certain documents. These included a copy of…