Singh v Minister for Immigration
[2015] FCCA 166
•30 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 166 |
| Catchwords: MIGRATION – Judicial review of Migration Review Tribunal decision – application for a Skilled Independent Overseas Student (Residence) (Class DD) (Subclass 880) visa – assessing authority validly withdrew its assessment –Tribunal took subsequent failure to meet visa criterion into account – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.57(1)(a), 359A(1)(a) Migration Regulations 1994 (Cth), Regs.1.151, 2.26B, cls.880, 880.230, 880.230(1), Sch 2, Part 880 |
| Singh v Minister for Immigration & Anor [2014] FCCA 347 |
| Applicant: | JASWINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 2144 of 2013 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 24 September 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 30 January 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Costello |
| Solicitors for the Applicant: | Da Gama Pereira & Associates Pty Ltd |
| Counsel for the respondents: | Mr Smyth |
| Solicitors for the respondents: | Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2144 of 2013
| JASWINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant seeks judicial review of a decision of the Migration Review Tribunal (‘The Tribunal’) dated 1 November 2013. The grounds of the Application filed 5 December 2013 were as follows:-
“My visa was refused because my work experience was found to be […]. I would like to apply for the TRA [Trades Recognition Australia]. I have genuine work experience and I will provide evidence once my TRA would be approved.”
On 24 September 2014, the Applicant sought leave to amend his application. Such leave was granted by the Court. The amended ground in support of the relief sought in the original Application filed 5 December 2014, together with further relief sought in the nature of a writ of mandamus to issue, and an order for costs is as follows:-
“Ground 1
The Tribunal erred in affirming the delegate’s decision on the basis that there was no skills assessment from the Trades Recognition Authority (‘TRA’).
Particulars
i. Under Reg. 2.26B (1) of the Migration Regulations 1994 (Cth) (“Regulations”), the Minister had discretionary power to specify TRA as the relevant assessing authority for:
a. a skilled occupation; and
b. one or more countries, for the purposes of an application for a skills assessment made by a resident of one of those countries.
ii. Prior to 12 June 2007, the applicant made an application to the TRA for a skills assessment.
iii. The TRA assessed the applicant’s skills and issued a positive skills assessment to him dated 12 June 2007.
iv. At the time the TRA positively assessed the applicant’s skills, the TRA had not been specified under Reg 2.26B.
v. Instrument IMMI 068 “Skilled Occupations, Relevant Assessing Authorities, Countries and Points for General Skilled Migration Visas and Certain Other Visas”, which commenced on 1 July 2012, specified the TRA as the relevant assessing authority.
vi. By effect of IMMI 068, at the time of the Tribunal’s decision, the TRA had been specified as the relevant assessing authority for the purposes of the applicant’s application for a skills assessment and the TRA’s positive skills assessment was validly made.
vii. The TRA was not at any relevant time specified under Reg 2.26B as having power to:
a. revoke a skills assessment; or
b. withdraw a skills assessment; or
c. re-assess a person’s skills in the absence of an application for it to do so.
viii. The TRA acted without power when it purported to revoke, withdraw or re-assess the applicant’s skills assessment.
ix. In the premises, the TRA’s positive assessment of the applicant’s skills, which was made valid by IMMI 068, has not been revoked, withdrawn or reassessed.
x. Accordingly, at the time of the Tribunal’s decision the applicant’s skills for the nominated skilled occupation had been assessed by the relevant assessing authority as suitable for that occupation”
The First Respondent seeks dismissal of the application and costs to follow the event.
On 27 August 2007, the Applicant applied for a Skilled Independent Overseas Student (Residence) (Class DD) (Subclass 880) visa (‘Subclass 880 Visa’).
In his application for the Subclass 880 visa, the Applicant nominated the occupation of Cook as his skilled occupation.
The Applicant's application for the Subclass 880 Visa was made five days before subclass 880 was replaced by new subclass 885. Applications for a Skilled Independent Overseas Student (Residence) (Class DD) visa made before 1 September 2007 continued to be processed under the otherwise repealed primary criteria set out below.
The criteria for the Subclass 880 Visa were on the date of the Applicant’s application provided for in cl.880 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) as it then stood. It provided:-
1.A relevant assessing authority has assessed the skills of the applicant as suitable for his or her nominated skilled occupation, and no evidence has become available that the information given or used as part of the assessment of the applicant’s skills is false or misleading in a material particular.
2.If the assessment mentioned in subclause (1) above is made on the basis of a qualification obtained in Australia while the applicant was the holder of a student visa, the qualification was obtained as a result of full time study of a registered course.
In relation to the second relevant criteria in cl.880.230 of Schedule 2 to the Regulations (regarding skills assessment), at all relevant times, Reg.2.26B of the Regulations provided:-
“(1) Subject to subregulation (1A), the Minister may, by an instrument in writing for this subregulation, specify a person or body as the relevant assessing authority for:
(a) a skilled occupation; and
(b) one or more countries;
for the purposes of an application for a skills assessment made by a resident of one of those countries.
(1A) The Minister must not make an instrument under subregulation (1) unless the person or body has been approved in writing as the relevant assessing authority for the occupation by:
(a) the Education Minister; or
(b) the Employment Minister.
(2) The standards against which the skills of a person are assessed by a relevant assessing authority for a skilled occupation must be the standards set by the relevant assessing authority for the skilled occupation.
(3) A relevant assessing authority may set different standards for assessing a skilled occupation for different visa classes or subclasses.”
Thus by Reg.2.26B of the Regulations as set out above, the First Respondent is empowered to specify by instrument in writing a person or body as an “assessing authority” for the purposes of cl.880.230(1) of Schedule 2 to the Regulations.
The instrument by which that was achieved, as the Applicant accepts, was IMMI 12/068 (‘the Instrument’), signed by the First Respondent on 12 June 2012 and expressed to commence on 1 July 2012. The Instrument, at paragraph 3(iii), specifies that:
“… for the purposes of paragraph 2.26B(1)(a) of the Regulations, the person or body corresponding to each skilled occupation listed in Schedule 1A to this instrument as the relevant assessing authority for that skilled occupation…”
Schedule 1A of the Instrument then specifies Trades Recognition Australia (‘TRA’) as the assessing authority for Cooks, which was the “skilled occupation” (contemplated by reg.1.151 of the Regulations) the Applicant nominated.
Facts
On 12 June 2007, the TRA assessed the Applicant in relation to his application for a skilled assessment. A reference from Waterfront Restaurant Port Melbourne Station Pier dated 7 May 2007 was submitted to the TRA in support of the Applicant’s application for a skills assessment. The TRA issued a ‘successful’ skills assessment. This was communicated to the Applicant by letter of 12 June 2007.
On 25 November 2010, the TRA withdrew (or purported to as stated by the Applicant) the “successful” assessment it had issued in June 2007. This was communicated to the Applicant by letter dated 25 November 2010, from the Department of Education, Employment and Workplace Relations within which the TRA sat. It was a letter affording procedural fairness to the Applicant which said in relevant part:-
“[TRA] wishes to advise that the successful skills assessment outcome letter issued to you by us on 12 June 2007, has been withdrawn.
In a letter to you dated 11 June 2010, TRA wrote to you to advise you of its proposed course of action to revoke your successful assessment outcome and requested that you respond to TRA within 28 days of the date of issue. On 7 July 2010, TRA received a request from you for an extension, which was subsequently granted until 5 August 2010.
However, as at today’s date, TRA has not received a response from you. Accordingly, TRA has withdrawn the skills assessment issued to you on 12 June 2007, for the reasons outlined in the correspondence of 11 June 2010.
On this basis, TRA now substitutes a new opinion that your employment in the occupation of Cook cannot be verified and therefore your application is unsuccessful.
The Department of Immigration and Citizenship will be informed that your successful outcome has been revoked.”
By letter dated 23 January 2012, the Department of Immigration and Citizenship (as it then was) (‘the Department’) wrote to the Applicant asking him to submit evidence of his 900 hours work experience.
In response, the Applicant provided three statutory declarations and a copy of his employment reference from Waterfront Restaurant Port Melbourne Station Pier. The Applicant’s own Statutory Declaration dated 31 January 2012 stated that he worked as a cook at the Waterfront Restaurant on a voluntary basis from 27 March 2006 to 7 May 2007.
By letter dated 6 February 2012, the Department wrote to the Applicant stating that information had been received from TRA that it had revoked its assessment because it could not verify the 900 hours work experience. The letter sought any documentation received from the TRA after 8 December 2010 and further evidence of the 900 hours work experience the Applicant had completed in 2007. None was forthcoming.
Both the decisions of the delegate of the First Respondent (‘the delegate’) and the Tribunal involved acceptance that as the assessment issued to the Applicant had been withdrawn, he was unable at the time of decision to “satisfy the criterion in cl.880.230(1) [of Schedule 2 to the Regulations]”.
Consideration
The main contention (as accurately stated by the Counsel for the First Respondent) on which the Applicant’s case turns, is that the assessing authority, TRA, had “power” to assess his suitability for his nominated skilled occupation, but no “power” to withdraw, revoke or re-make its assessment. On the hearing of the matter the Applicant submitted further to this that as there had been a positive skills assessment, it was not necessary to consider what happened thereafter.
The function of the assessing authority is to “assess the skills of the applicant as suitable for his or her nominated skilled occupation”. Significant latitude is given to the assessing authority to go about this task, as is provided in Reg.2.26B(2) of the Regulations:-
“The standards against which the skills of a person are assessed by a relevant assessing authority for a skilled occupation must be the standards set by the relevant assessing authority for the skilled occupation.”
The latitude of the assessing authority in exercising its function in the First Respondent’s submission, clearly includes an ability to amend, recall, correct or withdraw its assessments in the course of determining whether the standards it has set have been met by a particular applicant. Equally, it is argued by the First Respondent, it would be open to an authority to withdraw and/or re-issue an assessment if it formed the view that the assessment should not have been issued for example, because information comes to light that persuades the assessing authority that an applicant has not met the “standards set... for the skilled occupation”, so that the applicant cannot be assessed as “suitable”. What is submitted is that it is a function being exercised, not a power in the nature of Ministerial power for instance.
The Court accepts that the TRA is exercising a function bestowed upon it to make an assessment. This is not the exercise of a statutory power. Rather the assessment is to inform, at the time of decision, the exercise of a statutory power by the migration decision maker. In this case, it was open to the TRA to withdraw its assessment of the Applicant’s suitability prior to the time of decision by the Tribunal. Such revocation of an assessment was a fact Judge O’Dwyer[1] held to be relevant for the Tribunal (in that matter) to take into account, when finding it did not have before it a complying assessment. Here a valid revocation by the assessing authority resulted in the Applicant’s inability to meet the cl.880.230(1) of the Schedule 2 to the Regulations criterion.
[1] Singh v Minister for Immigration & Anor [2014] FCCA 347 at [32].
For the above reasons the application shall be dismissed with costs.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 30 January 2015