RAI v Minister for Immigration
[2010] FMCA 472
•1 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RAI v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 472 |
| MIGRATION – Review of Migration Review Tribunal decision – skilled - graduate visa – criteria in cl.485.214 of sch.2 to Migration Regulations 1994 can be satisfied at any time up to decision on visa application – Tribunal decision based on two separate and independent grounds. |
| Migration Act 1958, s.474 Migration Regulations 1994, cls.485.214, 485.221, 487.214, 487.223 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Berenguel v Minister for Immigration & Citizenship (2010) 264 ALR 417 VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965 |
| Applicant: | SUNITA RAI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 642 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 1 July 2010 |
| Date of Last Submission: | 1 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 1 July 2010 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Mr T. Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 642 of 2010
| SUNITA RAI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 10 December 2007 the applicant applied for a Skilled (Provisional) (Class VC) subclass 485 (Skilled – Graduate) visa. A delegate of the first respondent (“Minister”) refused the application on
8 December 2008 on the basis that the applicant did not satisfy cl.485.214 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicant then applied to the Migration Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Relevant law
The Tribunal described the Skilled (Provisional) (Class VC) visa as a visa which enables graduates of Australian educational institutions and people who have held certain temporary skilled visas to reside in Australia temporarily in order to obtain skills and qualifications required for the grant of permanent general skilled migration visas.
The criteria for the grant of a subclass 485 visa are set out in pt.485 of sch.2 to the Regulations. Relevantly in this matter, a primary criterion ostensibly to be satisfied at the time of application was cl.485.214 which provides:
The Minister is satisfied that the applicant has applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority.
Background
The applicant’s application for a subclass 485 visa was lodged on
10 December 2007. In her application form under the section heading “Applicant skills assessment”, the applicant stated that her nominated occupation was that of a chemist, however, she made no mention of having been the subject of, or of having applied for, a skills assessment by the relevant assessing authority, VETASSESS.
On 8 December 2008 a delegate of the Minister refused the applicant’s application because she had failed to demonstrate at the time her application was lodged that she had applied to the relevant assessing authority for an assessment of her skills for her nominated occupation. Accordingly, the delegate found that the applicant did not meet the requirements of cl.485.214 for the grant of a subclass 485 visa.
On 31 December 2008 the applicant applied to the Tribunal for review of the delegate’s decision and provided with her application form some character references as well as a statement explaining her circumstances. Amongst other things, the applicant stated that she was not aware of the criteria which applied in her case and, moreover, was suffering from depression at the time she lodged her application.
The applicant appeared before the Tribunal on 23 February 2010 and repeated claims made in her statement. However, while acknowledging the applicant’s submissions, the Tribunal found that it had no discretion with respect to these matters. Consequently, given that the applicant had not applied for a skills assessment to VETASSESS at the time of her visa application, the Tribunal found that she did not satisfy the criteria for the grant of a subclass 485 visa found in cl.485.214.
The Tribunal also found that, as there was no evidence before it that the skills of the applicant for her nominated skilled occupation had been assessed by the relevant assessing authority as suitable for that occupation, it was not satisfied that the applicant met the criteria in
cls.485.221 and 487.223, which provide:
485.22 Criteria to be satisfied at time of decision
485.221(1) The skills of the applicant for the applicant’s nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation.
…
487.22 Criteria to be satisfied at time of decision
…
487.223 (1) The skills of the applicant have been assessed by the relevant assessing authority as suitable for the applicant’s nominated skilled occupation.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1.The Tribunal ignored my Australian skills.
2.The Tribunal erred in law in requesting assessment of qualification as I am graduated in Australia.
Ground 1
The first ground of the application misunderstands the task which the Tribunal had to perform. The Tribunal was not required to consider whether the applicant’s skills were sufficiently good to justify the grant of the visa she sought. That task was delegated to the relevant assessing authority and it was that authority’s opinion which, had it existed and been before the Tribunal, would have determined the question of whether the applicant’s skills justified the grant of a visa. What the Tribunal had to determine was whether the applicant had sought and obtained such a skills assessment. Consequently, the first ground of the application does not disclose a basis on which the Tribunal’s decision should be set aside.
Ground 2
It is to the satisfaction of criteria related to assessment of the applicant’s skills that the second ground of the application is impliedly addressed. Notwithstanding the applicant’s allegation, the Tribunal did not err by requesting or requiring an assessment of her qualification, because that is what the regulations required it to do. However, it did err by concluding that, by not having applied for an assessment of her skills, the applicant had not satisfied the criteria found in cls.485.214 and 487.214. The discussion of a very similarly worded provision in Berenguel v Minister for Immigration & Citizenship (2010) 264 ALR 417 at 423 [26] demonstrates this. The applicant could have met that criterion at any time up to the decision on her application; it did not need to be met when the application was lodged.
However, a separate and independent basis for the Tribunal’s decision is found in its consideration of the lack of evidence before it that the applicant had actually had her skills assessed by VETASSESS and its consequential conclusion that it was not satisfied that she met the criteria set out in cls.485.221 and 487.223. Even if, on the day before the Tribunal’s hearing, the applicant had met the requirement of cl.485.214 by applying for an assessment of her skills, the lack of evidence, as at the time of decision, of an actual assessment of her skills was fatal to her application to the Tribunal. Without evidence of such an assessment, the Tribunal could not be satisfied that the applicant met the requirements of cls.485.221 or 487.223. It did not err by finding that it was not satisfied of this and it did not err by basing its decision, at least in part, on that finding.
As the Tribunal’s decision was properly based on a finding which was not affected by jurisdictional error, the second ground of the application does not satisfy me that the Tribunal’s decision should be set aside: VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965 at [25] and [33].
Conclusion
As the applicant has not demonstrated that the Tribunal’s decision should be set aside, her application to the Court will be dismissed.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 13 July 2010
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