Seema v MIAC

Case [2012] FCA 257

FEDERAL COURT OF AUSTRALIA

Seema v Minister for Immigration and Citizenship [2012] FCA 257

Citation: Seema v Minister for Immigration and Citizenship [2012] FCA 257
Appeal from: Seema & Ors v Minister for Immigration & Anor [2011] FMCA 454
Parties: SEEMA, ARUN KUMAR and KHUSHI SANGRI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL
File number: NSD 1010 of 2011
Judge: SIOPIS J
Date of judgment: 20 March 2012
Catchwords: MIGRATION – application for Skilled (Residence) (Class VB) visa (Subclass 885) as a cook – points test - appellant had been employed as a cook before obtaining a Certificate III qualification in cooking – whether the period of employment prior to obtaining the Certificate III could be included in the qualifying period of employment for the purposes of establishing an Australian employment qualification as part of the points test.
Legislation: Migration Act 1958 (Cth) Pt 2 Div 3 Subdiv B
Migration Regulations 1994 (Cth) ASCO Code 4513-11; Sch 2 cl 885.221; Sch 6B Item 6B51; reg 1.15I, Legislative Instrument IMMI 10/026; Legislative Instrument Sch 1, Sch 4
Cases cited: Minister for Immigration and Citizenship v Kamruzzaman (2009) 112 ALD 550
Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59
WAKK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 225
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
Date of hearing: 1 November 2011
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 67
Counsel for the First, Second and Third Appellants:

Mr D Godwin
Counsel for the First Respondent:

Mr P Knowles
Solicitor for the First Respondent:

Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1010 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:

SEEMA
First Appellant

ARUN KUMAR
Second Appellant

KHUSHI SANGRI
Third Appellant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

SIOPIS J

DATE OF ORDER:

20 MARCH 2012

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellants are to pay the first respondent’s costs in the amount of $4,454.00.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1010 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:

SEEMA
First Appellant

ARUN KUMAR
Second Appellant

KHUSHI SANGRI
Third Appellant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

SIOPIS J

DATE:

20 MARCH 2012

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. The appellants are citizens of India.  On 14 July 2008, the first appellant (the appellant) lodged, with the assistance of a migration agent, an application for a Skilled (Residence) (Class VB) visa (Subclass 885).  The appellant nominated her skilled occupation as that of a Cook, ASCO Code 4513-11.  The reference to “ASCO” refers to a classification system provided for in the Migration Regulations

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Details
AGLC
Seema v MIAC [2012] FCA 257
Case
[2012] FCA 257
Decision Date

CaseChat Overview and Summary

The applicants, Seema and her husband, appealed against a decision of the Migration Review Tribunal (MRT) which had refused their application for a Skilled (Residence) (Class VB) visa. The applicants argued that they qualified for the visa under the points test, relying on their employment as cooks in Australia prior to obtaining a Certificate III qualification in cooking. The matter was heard in the Federal Court of Australia.

The central legal issue before the court was whether the period of employment as a cook before obtaining the Certificate III could be included in the qualifying period of employment for the purposes of establishing an Australian employment qualification as part of the points test. The court had to determine whether the applicants’ employment before obtaining the qualification should be considered as part of their qualifying period.

The court found that the applicants’ employment as cooks before obtaining the Certificate III qualification could not be included in the qualifying period of employment. The court held that the relevant legislative provisions and regulatory guidelines required that the applicants had to have held a qualification relevant to their occupation at the time of their employment in Australia. The court found that the applicants did not meet this requirement as they did not hold the Certificate III qualification at the time of their employment. The court dismissed the appeal and ordered the applicants to pay the costs of the respondent.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellants are to pay the first respondent’s costs in the amount of $4,454.00.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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