Seema & Ors v Minister for Immigration and Citizenship

[2012] HCASL 96

SEEMA & ORS

v

MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR

[2012] HCASL 96
S85/2012

1. The applicants, a married couple and their daughter, are citizens of India.  The first applicant, the wife, lodged an application for a Skilled (Residence) visa, nominating her skilled occupation as that of a cook.  The second and third applicants applied for visas as members of her family unit.  Applications for Skilled (Residence) visas are assessed under a points system.  Under this system it was necessary for the first applicant to obtain 120 points. 

2. In February 2009 a delegate of the Minister for Immigration and Citizenship awarded the applicant 110 points.  The delegate refused her application. 

3. The applicant applied to the Migration Review Tribunal ("the Tribunal") for a review of the delegate's decision.  The Tribunal awarded the first applicant 115 points.  It did not give her credit for employment as a cook earlier than the date on which she completed her qualification in commercial cooking.  As her aggregate point score was still below the threshold, the Tribunal affirmed the delegate's decision.

4. An application for judicial review of the Tribunal's decision was dismissed by the Federal Magistrates Court (Smith FM). 

5. An appeal to the Federal Court of Australia (Siopis J) was dismissed.

6. The applicants seek special leave to appeal from the orders of the Federal Court. They assert that the Tribunal "misunderstood the whole case", denied them natural justice, approached the review with a "closed mind" and wrongly applied the provision of the Migration Regulations 1994 (Cth) governing the award of points for employment in a skilled occupation.

7. Siopis J held that the determination of whether a visa applicant has been employed in a nominated skilled occupation requires the decision-maker to determine whether the applicant possessed the skill level nominated for the occupation for the purposes of the Migration Regulations. It followed that the Federal Magistrate did not err in upholding the Tribunal's calculation of the first applicant's entitlement to the award of points under the statutory scheme. Nothing in the material filed in support of the application engages with his Honour's reasoning in this or other respects. Nothing in that material calls into question the correctness of his Honour's conclusion that the Tribunal did not commit jurisdictional error. If special leave to appeal were granted the appeal would have no prospects of success.

8. The application is dismissed.

9. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

J.D. Heydon
20 June 2012 V.M. Bell