RAI v Minister for Immigration

Case [2010] FMCA 472

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

  1. The application be dismissed.

  2. 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

  1. 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.

  2. 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.

  3. For the reasons which follow, the application will be dismissed.

Relevant law

  1. 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.

  2. 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

  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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

  1. 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

  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

  1. 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.

  2. 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.

  3. 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

  1. 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

Details
AGLC
RAI v Minister for Immigration [2010] FMCA 472
Case
[2010] FMCA 472
Decision Date

CaseChat Overview and Summary

The case of RAI v Minister for Immigration involved a dispute before the Federal Court of Australia regarding the visa application of an individual who was seeking to remain in Australia based on her skilled occupation. The applicant argued that the Administrative Appeals Tribunal had erred in its decision to dismiss her application, claiming that the Tribunal had overlooked her Australian skills and wrongly required an assessment of her qualifications. The Tribunal had found that the applicant had not satisfied the criteria related to the assessment of her skills for her nominated occupation, as required by the migration regulations. The central legal issues in this case were whether the Tribunal correctly interpreted and applied the relevant migration criteria and whether it had erred in its findings regarding the assessment of the applicant's skills.

The Federal Court of Australia found that the Tribunal did not err in its interpretation of the criteria that required the applicant's skills to be assessed by the relevant authority as suitable for her nominated occupation. The Court held that the Tribunal's role was to determine whether the applicant had obtained such a skills assessment, not to assess the adequacy of the applicant's skills itself. The Court also clarified that the Tribunal did not err by requesting an assessment of the applicant's qualifications as this was a requirement under the regulations. However, the Tribunal had erred in concluding that the applicant had failed to satisfy the criteria because she had not applied for an assessment of her skills. The Court noted that the applicant could have met the criteria at any time up to the decision on her application. Nevertheless, the Tribunal's decision could stand on the independent ground that there was no evidence before it that the applicant's skills had been assessed by the relevant authority. Without such evidence, the Tribunal was not satisfied that the applicant met the criteria, and the Court found no error in this conclusion.

The Court dismissed the applicant's appeal and ordered that the application be dismissed with the applicant to pay the respondent's costs of $3,500. This decision underscores the importance of meeting specific procedural requirements, such as obtaining an assessment of one's skills by the relevant authority, when applying for a visa under the Migration Act. It also highlights the necessity for applicants to provide the necessary evidence to support their visa application, as the absence of such evidence can be fatal to the outcome of their application.

Orders

Orders of the court

1.

The application be dismissed.

2.

The applicant pay the first respondent’s costs fixed in the amount of $3,500.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 decision485.221(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. 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. 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. 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.

Ratio Decidendi

Legal Principle Established

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