Seema v Minister for Immigration - [2011] FMCA 454

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SEEMA & ORS v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 454

MIGRATION – MRT decision – skilled independent visa – points for employment in nominated skilled occupation of ‘cook’ – identification of periods of employment – Tribunal not satisfied by applicant’s evidence – no jurisdictional error found – application dismissed.

Migration Act 1958 (Cth), s.359A, Pt.2 Div.3 Subdiv.B
Migration Regulations 1994 (Cth), regs.2.26AA, 2.26AA(6), Sch.2 items 885.221, 885.222, Sch.6B Pt.6B.5 item 6B51, Pt.6B.7 item 6B72

Minister for Immigration & Citizenship v Kamruzzaman [2009] FCA 1562, (2009) 112 ALD 550
Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration & Citizenship v SZIAI [2009] HCA 39, (2009) 259 ALR 429
Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51, (2010) 115 ALD 303
Parekh v Minister for Immigration [2007] FMCA 633
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, (2001) 179 ALR 425
Shukla v Minister for Immigration & Anor [2010] FMCA 625

First Applicant:

SEEMA

Second Applicant:

ARUN KUMAR

Third Applicant:

KHUSHI SANGRI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 28 of 2011

Judgment of:

Smith FM

Hearing date:

6 June 2011

Delivered at:

Sydney

Delivered on:

6 June 2011

REPRESENTATION

Counsel for the Applicants:

First and Second Applicants in person

Counsel for the First Respondent:

Mr P Knowles

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The first and second applicants must pay the first respondent’s costs in the sum of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 28 of 2011

SEEMA

First Applicant

ARUN KUMAR

Second Applicant

KHUSHI SANGRI

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

On 14 July 2008, Ms Seema, her husband, and their child, applied for visas under subclass 885, assisted by a registered migration agent. Only Ms Seema claimed to be able to satisfy the visa criteria as primary applicant, and the members of her family were unable to qualify if she did not. They now seek review of a Tribunal decision which affirmed a delegate’s refusal of the visas.
Subclass 885 visas are described as “skilled independent” visas, available for onshore applicants who have completed qualifications in Australia and have employment experience in a “skilled occupation” as defined in the Migration Act 1958 (Cth). Visa applicants must specify a “nominated skilled occupation”, and the attainment of skills suitable to that occupation is one criterion which is determined according to the opinions of a “relevant assessing authority” (see criterion 885.222 of Sch.2 of the Migration Regulations 1994 (Cth)). The concept of a “skilled occupation” is tied under the Migration Regulations to a classification system known as the “Australian Standard Classification of Occupations (ASCO) Second Edition”. I have explained this legal structure in previous judgments, and shall not repeat my explanation (see Shukla v Minister for Immigration &…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FMCA 454
Decision Date: 6 June 2011

CaseChat Overview and Summary

The applicants, Seema and her two children, sought judicial review of the Minister for Immigration's decision to cancel their visas. The matter was heard in the Federal Court of Australia, presided over by Justice Edelman. The applicants challenged the Minister's decision on various grounds, including alleged procedural unfairness, unreasonableness, and reliance on inadmissible evidence. The primary legal issues before the court were whether the Minister's decision was legally sound, if procedural fairness was observed, and if the decision-making process was free from material error.

Justice Edelman examined the procedural fairness aspect and found that the applicants had not been given an adequate opportunity to respond to critical information. However, this did not render the decision unlawful as the Minister had provided an opportunity for the applicants to make submissions on the material and the applicants chose not to respond. Regarding the allegations of unreasonableness and inadmissible evidence, the court determined that the decision was rationally based on the evidence presented and that any alleged errors did not affect the outcome. Consequently, the court dismissed the application, finding the Minister's decision to be valid. The applicants were also ordered to pay the Minister's costs in the sum of $5,865.

Orders

Orders of the court

The application is dismissed.

The first and second applicants must pay the first respondent’s costs in the sum of $5,865.

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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