Singh v Minister for Immigration

[2013] FCCA 1223

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ANOR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1223

Catchwords:
MIGRATION – Application for adjournment dismissed – application for Skilled (Provisional) (Class VC) visa – no evidence of assessment by Trades Recognition Australia – no error on part of Tribunal – application dismissed.

Legislation:

Migration Regulations 1994 cl.485.221 of Schedule 2, Part 485, Reg.1.15I

First Applicant: JASPREET SINGH

Second Applicant: SANDEEP KAUR

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 380 of 2013

Judgment of: Judge Whelan

Hearing date: 7 August 2013

Date of Last Submission: 7 August 2013

Delivered at: Melbourne

Delivered on: 7 August 2013

REPRESENTATION

Counsel for the First Applicant: No appearance by the First Applicant

Counsel for the Second Applicant: No appearance by the Second Applicant

Counsel for the First Respondent: Ms Randall-Smith

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The name of the First Respondent be amended to

   
   

   “Minister for Immigration, Multicultural Affairs and Citizenship”.

2. The Application for adjournment by the Applicant be dismissed.

3. The Application filed on 25 March 2013 be dismissed.

4. The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 380 of 2013

JASPREET SINGH

First Applicant

SANDEEP KAUR

Second Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Adjournment Application

1. The Applicant in this matter, Mr JASPREET SINGH (“the Applicant”), made a written Application on 5 August 2013 for an adjournment of the proceedings. In the Application he states a number of things:

   ·First, that he had a fall last week;

   ·Second, that he has various injuries, including a fracture to his back;

   ·Third, that the doctor told him to have complete rest; and

   ·Fourth, that he could send a medical certificate, which he could get from his doctor.

   In response to that correspondence, the Court requested that a medical certificate be provided. The Applicant then indicated that he could not get an appointment with the doctor until the following day, which would be today’s date.

2. In the absence of a medical certificate, I have the following concerns about the contents of the Applicant’s letter:

   ·First, if the injury occurred last week and the injuries were as significant as the Applicant maintains in his letter, then it is surprising to me that he had not immediately sought medical attention or had any X-rays or other medical examination prior to him sending this letter on 5 August 2013; and

   ·Second, he refers in the letter to having “doctor’s advice” and to being able to ask the doctor for a medical certificate. He then responds, when the medical certificate is requested, by saying that he cannot get an appointment with the doctor. If all he had to do was request a medical certificate, then it appears to me that it would not have been necessary to have had an appointment with the doctor.

3. I am not satisfied of the veracity of the contents of the correspondence, and on that basis I am not prepared to grant an adjournment of this Application.

4. As I have refused an adjournment in this matter, I consider it appropriate to deal with the Application as it stands before me.

   
   

   The only material that has been lodged by the Applicant in this case is the Application itself. There has been no application to amend that Application and no written submissions.

Substantive Application

1. This is an Application for review of a decision of the Migration Review Tribunal (“the Tribunal”) of 5 March 2013, which affirmed the decision of the Minister’s delegate to refuse to grant the Applicant a

   
   

   Skilled (Provisional) (Class VC) visa. The Applicant seeks an order that the decision of the Tribunal be quashed.

2. The Applicant is an Indian national. He applied for the visa on

   
   

   11 March 2011 and the Application included his partner,

   
   

   Ms SANDEEP KAUR (“the Second Applicant”). The visa application stated that, between February 2010 and December 2010, he had completed a Diploma of Business at the Delhi International College. He nominated the occupation of cook on his application form and he identified the Trades Recognition Australia (“TRA”) as the assessing authority and the date of the skills assessment as 24 January 2010.

3. The delegate refused to grant the visa on 23 April 2012 and the Applicants applied to the Tribunal for a review of that decision on

   
   

   8 May 2012. They were invited to attend a hearing to give evidence but did not appear. On 5 March 2013, the Tribunal affirmed the delegate’s decision and on 25 March 2013, this Application to review was filed. Essentially, the Tribunal’s decision was based on the failure, by the Applicant, to produce any evidence that he had obtained a successful skills assessment from TRA, which was the relevant assessing authority for the skilled occupation nominated by him, namely the occupation of cook.

4. As this was an essential criteria for the granting of the visa sought,

   
   

   the Tribunal could not be satisfied that the Applicant met that criteria.

   
   

   The Second Applicant produced no evidence that she met the primary criteria for the grant of the visa, nor did she meet any other applicable requirements.

The grounds of review

1. The Application in this matter provides the following in terms of the grounds:

   1.  Skills assessment of a Cook from TRA.

   The 485 visa application was made on by lodgement of a skills assessment with the TRA (for a cook). The decision to grant a 485 required a positive or successful skills assessment from TRA.

   
   

   At the time of decision from DIAC I was not able to provide them with a successful TRA skills assessment. I was also not able to provide positive skills assessment of cook from TRA to the MRT.

   
   

   I have now new work experience and will be applying for new skills assessment with the TRA as a cook again.[1]

   [1] Application of Jaspreet Singh filed 25 March 2013, at page 3.

The First Respondent’s submissions

1. The First Respondent, in written submissions, indicates that the Applicant concedes that at the time he lodged his Application, he did not possess the relevant evidence of having obtained a skills assessment, and this Application for judicial review is merely an attempt at a merits review with the objective of providing the Court with further material, presumably an assessment that has been made at some point since the Application. The Tribunal identified the issue as whether the Applicant’s skills had been recognised as suitable by the relevant assessing authority, and found that:

   ·the Applicant had nominated the occupation of cook, which was a skilled occupation specified in IMMI 12/068;

   ·the relevant assessing authority was the TRA; and

   ·the Applicant had not provided any evidence to indicate that he had obtained a successful skills assessment from the relevant assessing authority.

   The Tribunal was not satisfied that the Applicant’s skills had been assessed as suitable by the relevant assessing authority for his nominated skilled occupation.

2. The Tribunal therefore was not satisfied the Applicant met the requirements of cl.485.221 of the Migration Regulations 1994 (“the Regulations”) and that, absent any evidence before the Tribunal that the Applicant had obtained a successful skills assessment, the Tribunal’s findings were open to it on the material before it.

Conclusions

1. The criteria for granting a sub-class 485 visa are set out in Part 485 of Schedule 2 of the Regulations. A primary criteria to be met is

   
   

   cl.485.221 of the Regulations which provides:

   485.22  Criteria to be satisfied at time of decision

   485.221

   (1)The skills of the applicant for the applicant’s nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation.

   (2)If the assessment mentioned in subclause (1) 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 studying a registered course.[2]

   [2] Migration Regulations 1994, Part 485, Schedule 2, cl.485.221.

2. Skills occupation is defined in Regulation 1.15I of the

   
   

   Regulations to provide:

   1.15I     Skilled occupation

   (1)A skilled occupation, in relation to a person, means an occupation of a kind:

   (a)     that is specified by the Minister in an instrument in writing to be a skilled occupation; and

   (b)    if a number of points are specified in the instrument as being available — for which the number of points are available; and

   (c)     that is applicable to the person in accordance with the specification of the occupation.

3. It is not disputed that the occupation of cook is an occupation specified by the Minister, as previously referred to in the submissions of the

   
   

   First Respondent, and that the relevant assessment authority for that occupation is TRA. Clearly the Applicant, in his Application, was aware that that was the relevant assessing authority. The Applicant produced no evidence that he had successfully obtained a skills assessment from TRA.

4. Indeed, his Application for review strongly suggests that at the time he made the Application, he did not have an assessment stating that he was a skilled cook. As the Second Applicant made no separate application on her own behalf, her Application was contingent on the Applicant being successful in his claim.

5. The Tribunal appropriately drew the Applicants’ attention to the matters which might lead to the Application being rejected, and gave them an opportunity to appear. I find nothing in the Tribunal’s decision, or the procedures adopted by the Tribunal, to show any jurisdictional error on the part of the Tribunal, and the Application for review must, therefore, be dismissed.

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

Associate: 

Date: 27 August 2013