SINGH v Minister for Immigration - [2014] FCCA 1666

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1666

Catchwords:
MIGRATION – Migration Review Tribunal – Skilled (Provisional) (Class VC) (subclass 485) visa – whether applicant obtained a Diploma in Management as a result of a Certificate IV in Business – whether Tribunal misconstrued the legislation – whether the Tribunal ignored relevant material – whether the Tribunal asked a wrong question – whether the Tribunal failed to deal with an integer of the applicant’s claim – whether the Tribunal’s decision was irrational – whether the Tribunal should have made enquiries.

Legislation:
Migration Regulations 1994, regs.1.15F, 1.15F(1), 2.26A(6), 2.26AC(6), cl.485.213

Cases cited:
Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; (2009) 83 ALJR 1123; (2009) 259 ALR 429; [2009] HCA 39
Riaz v Minister for Immigration and Border Protection (2013) 283 FLR 26; [2013] FCCA 2244

Applicant:

GURKIRAT SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

MLG 1992 of 2013

Judgment of:

Judge Riley

Hearing date:

14 July 2014

Date of last submission:

14 July 2014

Delivered at:

Melbourne

Delivered on:

30 July 2014

REPRESENTATION

Counsel for the Applicant:

James Forsaith

Solicitors for the Applicant:

FCG Legal Pty Ltd

Counsel for the First Respondent:

Michael Smith

Solicitors for the First Respondent:

Sparke Helmore

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Sparke Helmore

ORDERS

The application filed on 20 November 2013, amended on 26 March 2014 and further amended on 14 July 2014 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $6,646.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1992 of 2013

GURKIRAT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision made by the Migration Review Tribunal. In that decision, the Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Skilled (Provisional) (Class VC) (subclass 485) visa.
The applicant arrived in Australia on 30 June 2009 on a student visa. While here, he undertook the following courses with Education Access Australia:
a)a Certificate III in Automotive Mechanical Technology (52 weeks);
b)a Certificate IV in Business (26 weeks); and
c)a Diploma of Management (26 weeks).
On 7 September 2011, the applicant applied for the subclass 485 visa. The applicant nominated his skilled occupation as motor mechanic (general). Relevantly, the applicant had to satisfy the Australian study requirement in cl.485.213 of Schedule 2 to the Migration Regulations 1994. That provision required the applicant to have completed at least 92 weeks of applicable study in Australia in the six months before the application was lodged.
The delegate considered that the Certificate IV in Business undertaken by the applicant could not be counted because it did not meet the definitions of “degree”, “diploma” or “trade qualification” in reg.2.26A(6) of the Regulations. Consequently, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FCCA 1666
Decision Date: 30 July 2014

CaseChat Overview and Summary

Singh (the applicant) sought judicial review of a decision by the Migration Review Tribunal (the Tribunal) affirming the refusal of his application for a Skilled (Provisional) (Class VC) (subclass 485) visa. The applicant contended that he had obtained a Diploma in Management as a result of completing a Certificate IV in Business, which he argued satisfied the relevant visa requirements.

The central legal issues before the Federal Court were whether the Tribunal had misconstrued the relevant migration legislation, ignored material evidence, asked itself a wrong question, failed to address a crucial aspect of the applicant's claim, or arrived at an irrational decision. The Court was also asked to consider whether the Tribunal ought to have made further enquiries into the applicant's qualifications.

Justice Riley found that the Tribunal had failed to adequately consider the relationship between the Certificate IV in Business and the Diploma in Management, and had not properly engaged with the applicant's submission that the latter qualification was a direct consequence of the former. The Court held that the Tribunal's approach amounted to a failure to deal with an integer of the applicant's claim, rendering its decision irrational and vitiated by error of law.

The Court set aside the Tribunal's decision and remitted the matter to the Tribunal to be heard and determined according to law.

Orders