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 |
| 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 &…
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- Case
- [2011] FMCA 454
- Decision Date
CaseChat Overview and Summary
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
1.
The application is dismissed.
2.
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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