SINGH v Minister for Immigration

[2014] FCCA 2633

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2633

Catchwords:
MIGRATION – Skilled (Provisional) Class VC (Subclass 485) visa – where applicant provided a Trades Recognition Australia assessment reference – where reference was bogus – where public interest criterion 4020 not satisfied – no jurisdictional error.

Legislation:

Migration Regulations 1994 (Cth), Schedule 2, cl.485.224, PIC 4020

Applicant: GURPREET SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1773 of 2013

Judgment of: Judge Jarrett

Hearing date: 22 July 2014

Date of Last Submission: 22 July 2014

Delivered at: Brisbane

Delivered on: 17 November 2014

REPRESENTATION

The applicant appeared in person

Solicitor for the first respondent: Mr Hornsby

Solicitors for the first respondent: Sparke Helmore

The second respondent entered a submitting appearance.

ORDERS

1. The application filed on the 23 October, 2013 be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $3326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG1773 of 2013

GURPREET SINGH

applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 1 March, 2011, the applicant applied for a Skilled (Provisional) Class VC (Subclass 485) visa. On 16 April, 2012 a delegate of the first respondent refused to grant the visas. On 26 September, 2013 a migration review tribunal affirmed the decision of the first respondent’s delegate not to grant the applicant the visa.

2. By his application filed 23 October, 2013, the applicant seeks judicial review of the migration review tribunal’s decision. 

3. On 18 December, 2013 the application was listed for a “show cause” hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001. Other directions were made including an order that permitted the applicant to file and serve an amended application or any affidavit evidence by 12 March, 2014. However, the applicant has not filed or served any amended application or any affidavit evidence.

4. Directions were also made for the filing and service of written submissions.  The applicant has not filed any written submissions in support of this application.  The first respondent has filed written submissions which, I am satisfied, accurately summarise the factual matrix behind this application.  I have drawn upon the written submissions filed by the first respondent preparation of these reasons. 

5. If I am not satisfied that the application has raised an arguable case for the relief claimed I may dismiss the application.  The first respondent argues that the application does not raise in a claim for relief and I must dismiss the application. 

6. In his initial visa application, the applicant nominated his occupation as “Automotive Electrician’’ and stated that his skills had been assessed by Trades Recognition Australia on 19 October, 2009.  He provided a reference number for that assessment.

7. In order to be granted the visa, the applicant had to meet a number of criteria, including the criterion specified by cl.485.224 of Schedule 2 of the Migration Regulations 1994 (Cth). Amongst other things cl.485.224(a) required that the applicant satisfy public interest criterion 4020.

8. Present relevance is that PIC 4020 required that there be no evidence that the applicant had provided a “bogus document or information that was false or misleading in a material particular”.

9. On 17 February, 2012 the first respondent’s delegate sent the applicant an invitation to comment on information that had been received by the first respondent to the effect that the TRA reference number provided by the applicant in his visa application could not be verified as it did not exist in the TRA system.

10. On 16 April, 2012 the first respondent’s delegate refused to grant the visa on the basis that the applicant did not meet cl.485.224 because he failed to satisfy PIC 4020. The first respondent’s delegate found that the applicant had provided false and misleading information to the first respondent by stating in his application for the visa that he had a successful skills assessment from TRA and providing the accompanying reference number when that was untrue.

11. On 30 April, 2012 the applicant applied to the Tribunal for a review of the first respondent’s delegate’s decision.  By letter dated 29 August, 2013 the Tribunal invited the applicant to comment on or respond to information, pursuant to s.359A of the Act, on the first respondent’s department’s file that indicated that the TRA skills assessment reference number he had provided in his application for the visa could not be verified and that the TRA held no record of the applicant ever holding a skills assessment.  The letter request that the applicant to provide his comments or response by 23 September, 2013.

12. No response to the s.359A letter was received by the Tribunal. The applicant’s failure to respond to the Tribunal’s invitation under s.359A triggered ss.359C(2), 360(2)(c) and 360(3). The combined effect of these provisions was that the applicant was not entitled to appear before the Tribunal and the Tribunal acted within jurisdiction when it determined the application on the papers.

13. By letter dated 28 September, 2013 the Tribunal notified the applicant of its decision to affirm the first respondent’s delegate’s decision to refuse the visa application.

14. The Tribunal found that the applicant had given or caused to be given a TRA reference number to either the Minister in the visa application.  The Tribunal had regard to the evidence obtained from the Department that the TRA reference number the applicant provided did not exist and that there was no record of the applicant holding a skills assessment. Accordingly, it found that the TRA reference number was “false or misleading’’.  The Tribunal found further that the reference number was false or misleading in a material particular because cl.485.214 required applicants for a subclass 485 visa to apply to a relevant assessing authority for the assessment of their skills.  The Tribunal then went on to find that the requirements of PIC 4020 ought not be waived because there was no evidence or submissions before the Tribunal with respect to the existence of any compelling or compassionate circumstances.

15. Accordingly, the Tribunal therefore affirmed the first respondent’s delegate’s decision on the basis that the applicant did not satisfy cl.485.224.

16. The applicant is confined to the grounds contained in his initial application filed 23 October, 2013: FCCR 44.13(1). 

17. The applicant’s grounds of review are as follows: to

    1. I applied for the visa to department of immigration which was refused.

    2. Then I apply to M R T for review of that decision.

    3. I think M R T Tribunal and department of immigration did not look at my situation.

18. I accept the first respondent’s submissions that the first and second grounds restate facts and do not seek to identify a jurisdictional error in the Tribunal’s decision.

19. The third ground asserts that both the Tribunal and first respondent’s delegate did not look at his “situation”.  I accept the first respondent’s submissions that this ground lacks sufficient particularity to make it meaningful.  It cannot succeed.

20. In my opinion, the application does not raise an arguable case for the relief claimed by the applicant.  I am satisfied that I ought to dismiss the application with costs.

21. I make the orders set out at the commencement of these reasons.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Jarrett on 17 November 2014.

Deputy-Associate: 

Date: 18 November 2014