SINGH v Minister for Immigration

[2017] FCCA 947

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 947

Catchwords:
MIGRATION – Show cause hearing – decision made by Tribunal after the applicant indicated that he would not appear at the hearing scheduled before the Tribunal – Skills visa – no evidence that the applicant held a TRA – application to extend time – application filed 331 days out of time – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359A, 362(b), 363, 477

Cases cited:
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391

Vu v Minister for Immigration and Citizenship [2008] FCAFC 59

Applicant: SANDEEP SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2814 of 2015

Judgment of: Judge McNab

Hearing date: 31 March 2017

Date of Last Submission: 31 March 2017

Delivered at: Melbourne

Delivered on: 31 March 2017

REPRESENTATION

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant pay the First Respondent’s costs fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2814 of 2014

SANDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEAL TRIBUNAL

First Respondent

REASONS FOR JUDGMENT

1. This application was filed on 18 December 2015. Any application in relation to a Tribunal decision should have been made within the 35 day period specified by s.477(1) of the Migration Act 1958 (Cth) (‘the Act’), that is, by 21 January 2015. The application was therefore 331 days out of time.

2. The subject of the application was the decision of the Tribunal dated 17 December 2014 which affirmed the decision of a delegate of the first respondent not to grant the applicant a Skilled (Provisional) (Class VC) visa.

3. The applicant’s grounds of review are:

   (1) the decision made by the second respondent is not natural; 

   (2) procedural fairness;

   (3) my migration agent did not inform me about my hearing in the Administrative Appeals Tribunal and I did not get any chance to prove myself.

   After a few days I got call from immigration officer.  They told me I am going unlawful. (copied exactly)

4. In considering whether it is in the interests of the administration of justice to extend time, there are numerous authorities to the effect that the factors to consider include:

   a)whether there has been a reasonable and adequate explanation for the applicant’s delay;

   b)whether there is any prejudice to the Minister; and

   c)whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.[1]

   [1] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [52].

5. The applicant has not provided any explanation as to why the filing of the application was delayed.

6. Even if it was the case that the applicant contended that the reason for the delay is because he sought ministerial intervention, this does not provide an adequate explanation for the delay.[2]

   [2] Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 [32] per Jessup J.

7. In my view, no reasonable or adequate explanation has been provided for the delay in filing this application. No particular prejudice has been pointed to by the Minister. However, that of itself is not a ground for extending time pursuant to s.477(2) of the Act.

8. In terms of whether the applicant’s substantive case for judicial review is sufficiently arguable, the principal issue is whether the Tribunal correctly applied the law. What may be gleaned from the imperfect form of the applicant’s grounds of review is that he takes issue with the Tribunal’s compliance with the procedural fairness obligations of pt.5, div.5 of the Act. In my view, there is no basis for a claim that the Tribunal breached those provisions.

9. The applicant was properly invited by the Tribunal to a scheduled hearing by a letter dated 21 October 2014 sent by email to the applicant’s appointed authorised recipient. His migration agent completed a response to the hearing invitation signed by the applicant and provided that to the Tribunal, and that response indicated that the applicant declined to attend the scheduled hearing. Once the applicant had consented to the Tribunal deciding the review without him appearing before it, he was no longer entitled to appear at a hearing before the Tribunal.[3]

   [3] See ss.362(b) and 363 of the Act.

10. On 1 December 2014, pursuant to s.359A of the Act, the Tribunal wrote to the applicant inviting him to comment or respond to adverse information it received that Trade Recognition Australia (‘TRA’) did not have any record of his skills assessment application. No response was received by the Tribunal before it made its decision at 2:45 pm on 17 December 2014.

11. I have reviewed the decision of the Tribunal. There is no apparent jurisdictional error manifested in its reasons. The primary issue is whether the applicant satisfied the primary criterion of a subclass 485 visa in the Graduate Work Scheme. The criterion was concerned with the applicant’s skills in relation to his or her nominated skills occupation. The Tribunal noted that clause 485.224 requires that the applicant’s skills for the nominated skills occupation have been assessed by the relevant assessing authority as suitable for the occupation.[4]

    [4] Tribunal decision dated 17 December 2014 [10].

12. There is an additional requirement if the skills assessment was based on a qualification obtained in Australia while the applicant held a student visa. The Tribunal noted that the applicant had nominated the occupation of motor mechanic – general, which is a specified skill occupation.[5] The relevant assessing authority specified is TRA. There was no record of him making an application to obtain a skills assessment from that body.

    [5] Ibid [13].

13. On 1 December 2014, the Tribunal put this information to the applicant in correspondence as noted above. When the Tribunal made its decision to affirm the delegate’s decision, there was no evidence before it that the applicant had been assessed by the relevant assessing authority as suitable for the nominated skills occupation. In those circumstances, the Tribunal correctly identified the issues, gave the applicant the opportunity to appear before the Tribunal and gave the applicant the opportunity to respond to matters which were adverse to him.

14. In my view, the application does not disclose any arguable grounds that the applicant was able to satisfy the visa requirements.

15. In those circumstances, I dismiss the application.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date:  10 May 2017