SINGH v Minister for Immigration

[2015] FCCA 913

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 913

Catchwords:
MIGRATION – Judicial review of Migration Review Tribunal decision – application for a Skilled (Provisional) (Class VC) visa – no skills assessment – cl.485.22(1) of Schedule 2 to the Migration Regulations 1994 (Cth) – compulsory criteria – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.65

Migration Regulations 1994 (Cth), Schedule 2, cls.485.22(1), 485.221, 485.224
Federal Circuit Court Rules 2001 (Cth), r.44.12

Applicant: MANBIR SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1245 of 2014

Judgment of: Judge Hartnett

Hearing date: 23 March 2015

Delivered at: Melbourne

Delivered on: 23 March 2015

REPRESENTATION

The Applicant: In person

Counsel for the respondents: Mr Hibbard

Solicitors for the respondents: Clayton Utz Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1245 of 2014

MANBIR SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. This is a judicial review application filed by the Applicant on 24 June 2014 wherein he seeks judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) made on 2 June 2014.  In that decision, the Tribunal affirmed a decision of the First Respondent, by his delegate, not to grant the Applicant a Skilled (Provisional) (Class VC) visa (‘the visa’).

2. The grounds of the Application, as stated by the Applicant in Application filed on 24 June 2014, are as follows:-

   “1. The delegate refused the visa because the applicant did not satisfy cl.485.221 of Schedule 2 to the Regulations.

   2. Due to circumstances I could not provide all the relevant documents on time so please to review my application again and provide time to present all the documents.

   3. Please review the decision again.”

3. By response to the Application filed 3 July 2014, the First Respondent opposed the application for an order to show cause, and at the hearing this day sought dismissal of the application. 

4. The Court has before it the Court Book as filed by the First Respondent and the evidence contained therein.  The Court also has the First Respondent’s Written Submissions filed on 26 February 2015.  The Applicant filed no submissions, and when the matter was listed for hearing on 13 March 2015, the Applicant did not attend.  The Applicant, however, sought an adjournment of the proceedings on the basis of his ill health.  That ill health was not described to the Court in the medical certificate provided by the Applicant to the Court.  Nevertheless, the Court determined that the Applicant’s application for an adjournment would be acceded to, and the matter was relisted for hearing this day.

5. Rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’) provides for the Court to dismiss an application at a show‑cause hearing if the Court:-

   “...is not satisfied that the application has raised an arguable case for the relief claimed….”

   The Court is satisfied this day, for the reasons which follow, that the Applicant has not raised an arguable case and that, accordingly, the application should be dismissed with costs following the event. The quantum claimed by the First Respondent in costs is the sum of $3,416. That accords with the Schedule scale of costs in the Rules, and accordingly, the Court will also make an order that the Applicant pay the costs of the First Respondent in that sum.

Consideration

1. The Applicant is a citizen of India. 

2. On 13 March 2011, he applied to the Department of Immigration and Citizenship, as it then was (‘the Department’), for the visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’). In his visa application, the Applicant nominated his occupation as “cook” and stated that he had received a skills assessment from Trades Recognition Australia on 10 March 2011.

3. On 23 July 2012, the First Respondent, by his delegate, refused to grant the visa on the basis that the Applicant did not meet the requirements of public interest criterion 4005, which was required in order to meet cl.485.224 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). The Applicant sought review of that decision by the Tribunal, differently constituted. The Tribunal remitted the matter for reconsideration by the First Respondent with a direction that the Applicant met the requirements of public interest criterion 4005 for the purposes of cl.485.224 of Schedule 2 to the Regulations.

4. By letter dated 16 August 2013, the Department requested that the Applicant provide further information in support of his visa application.  In particular, the Department requested the Applicant to “provide skills assessment for his (nominated occupation)”.  Any response was to be received by the Department within 28 days of the date of the letter.

5. On 13 September 2013, an officer of the Department sent an email to the Applicant, noting that he had not yet provided the information requested.  The Applicant did not respond to this email or to the letter earlier forwarded of 16 August 2013. 

6. On 16 September 2013, the First Respondent, by his delegate, refused to grant the Applicant the visa. The delegate found that the Applicant did not satisfy cl.485.221 of Schedule 2 to the Regulations as he had not provided a skills assessment to the Department. In not meeting the requirements of cl.485.221, the Applicant did not meet the requirements for the grant of a Skilled (Provisional) (Class VC) visa.

7. On 4 October 2013, the Applicant applied to the Tribunal for review of the delegate’s decision of 16 September 2013.

8. By letter dated 23 April 2014, the Tribunal wrote to the Applicant, inviting him to provide the following information in writing:-

   “Information demonstrating that you meet the criteria in clause 485.221 including any information in relation to whether you have been assessed by the relevant assessing authority as suitable for your nominated skilled occupation.”

9. The Tribunal attached relevant legislation for the Applicant’s consideration and noted that the information was required to be received at the Tribunal by 19 May 2014.  The Tribunal noted that if the Applicant could not provide the information, he could ask the Tribunal for an extension of time in which to provide the information.  The Tribunal further said:-

   “If the tribunal does not receive the information within the period allowed or as extended, the tribunal may make a decision on the review without taking any further action to obtain the information.  You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before the tribunal to give evidence and present arguments.”

10. The Applicant did not respond to the correspondence of 23 April 2014 from the Tribunal to him.

11. On 2 June 2014, the Tribunal affirmed the delegate’s decision not to grant the Applicant the visa and provided notification of the decision to the Applicant in correspondence of 3 June 2014.  The Tribunal found, in paragraph 6 of its Decision Record dated 2 June 2014 (‘the Decision Record’):-

    “The applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances section 359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.”

12. The Tribunal noted in its Decision Record that to satisfy the primary criteria for the grant of a subclass 485 visa the Applicant must have applied for a skills assessment for his nominated skills occupation and been assessed as suitable for that occupation.  The issue for the Tribunal was whether the Applicant met that requirement. 

13. In Part 485 of Schedule 2 to the Regulations the primary criteria of subclass 485 are set out in division 485.2. In that division, the primary criteria are divided between subdivisions 485.21 and 485.22 which are respectively titled (a) Criteria to be satisfied at time of application; and (b) Criteria to be satisfied at time of decision.

14. In Part 485.22 of Schedule 2 to the Regulation cl.485.22(1) required that at the time of decision the Applicant’s skills for the nominated skilled occupation have been assessed by the relevant assessing authorities suitable for that occupation.

15. The term “Relevant assessing authority” was at all relevant times defined by reg.1.03 of the regulations as:-

    “relevant assessing authority means a person or body specified under regulation 2.26B.”

16. At all relevant times the First Respondent had specified the relevant assessing authority for a cook in Legislative Instrument IMMI12/068.  That relevant assessing authority was Trades Recognition Australia.

17. The criteria contained in division 485.2 of Scheduled 2 to the Regulations were compulsory criteria. If the Applicant did not meet any one of those criteria he would not be eligible for the grant of the visa.

18. The Tribunal found, on the evidence before it, that in the visa application lodged with the Department on 13 March 2011, the Applicant stated that he had a skills assessment on 10 March 2011 by Trades Recognition Australia for the nominated occupation of cook and that he had applied for the reference/receipt number.  Despite this – and requests for same from the Department firstly and, subsequently, the Tribunal – no response was received by the Applicant to their respective requests for production of that skills assessment.

19. The Tribunal reviewed the Department file and found no further information available regarding the Applicant undertaking a skills assessment for the nominated occupation of cook. Thus, on the evidence available the Tribunal was not satisfied that the Applicant’s skills had been assessed as suitable for his nominated skilled occupation by the relevant assessing authority. Thus, the Applicant did not satisfy the requirements of cl.485.22(1) of Scheduled 2 to the Regulations and the Tribunal had no option other than to affirm the decision not to grant the Applicant the visa he sought.

Conclusion

1. The grounds as set out in the Applicant’s Application do not contain any appropriate ground of judicial review.  The Decision Record clearly indicates the Tribunal complied with the statutory scheme of procedural fairness and natural justice in its dealings with the Applicant.  It correctly applied the law.

2. The Applicant indicated in his application that should he be provided with further time he would be able to:-

   “… present all the documents.”

   Since the filing of his Application, he has not filed any evidence to support that assertion.  He earlier did not respond to the Tribunal’s request for information which was put to him in accordance with the statutory scheme.  He was clearly on notice of the need for him to provide evidence of his skills assessment but failed to do so.

3. The Applicant advances no grounds whatsoever on which it could be said that the Tribunal’s decision is attended by jurisdictional error.  The Tribunal came to the decision it did because it was the only one available to it on a consideration of the relevant statutory scheme and on the evidence before it.  There was no mistaken application of the relevant law, nor was there any breach of procedural fairness afforded to the Applicant.  The application is without merit and there is no arguable case that can be advanced by the Applicant.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  13 April 2015