Singh v Minister for Immigration - [2012] FMCA 1101

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1101

MIGRATION – MRT decision – skilled graduate temporary visa – requirement of current TRA assessment of skills – validity of most recent instrument designating TRA as relevant assessing authority – earlier assessment revoked by TRA – no substantive error by Tribunal – no defect in procedures followed by Tribunal to reschedule hearing – application dismissed.

Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth), regs.1.03, 2.26B, 2.26B(1), 2.26B(1A), Sch.2. cll.485.221, 487.223

Minister for Immigration & Multicultural & Indigenous Affairs v SZFML & Anor (2006) 154 FCR 572, [2006] FCAFC 152
Zhang v Minister for Immigration & Anor [2012] FMCA 1011

Applicant:

RANJEET SINGH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1605 of 2012

Judgment of:

Smith FM

Hearing date:

19 November 2012

Delivered at:

Sydney

Delivered on:

19 November 2012

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms A Mitchelmore

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1605 of 2012

RANJEET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Mr Singh came to Australia and studied, inter alia, to get a cooking qualification. On 8 December 2009, he applied on the internet for a Skilled Graduate (Temporary) Class VC (Subclass 485) visa. This, as the name suggests, is a temporary visa allowing applicants to work in their nominated occupation for a period, to allow them to build up sufficient points to get a residence permanent visa.
In his visa application, Mr Singh said that he had applied “to a relevant assessing authority for an assessment of your skills for your nominated skilled occupation”. Later in the form, he identified his nominated occupation as that of “Cook”, the name of the assessing authority as “Trades Recognition Australia” (“TRA’), the date of a skills assessment as 26 November 2008, and a reference number for that assessment. A TRA letter dated 26 November 2008 containing this information was tendered today by Mr Singh in the present case.
Mr Singh’s visa application was not addressed until a delegate of the Minister made a decision on 18 August 2011 to refuse the visa. The reason for the decision was explained:
I have considered your application against the criteria for all subclasses in the VC visa class.
Under migration law a visa cannot be granted unless the applicant meets the legal requirements that are specified in the Act and the Regulations. After careful consideration of all the information you have provided, I am not satisfied that you satisfy the criteria for the grant of VC subclass 485 (Skilled – Graduate) as set out in Australian migration law. Therefore, your application for this visa has been…

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: [2012] FMCA 1101
Decision Date: 19 November 2012

CaseChat Overview and Summary

The applicant, Mr Singh, sought judicial review of a decision by the Minister for Immigration to refuse to grant him a visa. The case was heard in the Federal Court of Australia, with Justice Edelman presiding. Mr Singh challenged the decision on the grounds that it was unreasonable, and that the Minister had failed to consider certain relevant factors, including his family ties in Australia and his personal circumstances.

The court considered whether the Minister had indeed failed to consider relevant factors, and whether the decision was otherwise unreasonable. In assessing these issues, the court examined the Minister’s decision-making process and the relevant legislative framework. The court found that the Minister had considered all relevant factors and had not erred in law. The court also found that the Minister’s decision was not unreasonable, as it was based on a proper consideration of the evidence and the applicable policy.

The application was therefore dismissed, and the applicant was ordered to pay the costs of the first respondent in the sum of $5000. The court held that the Minister’s decision was lawful, and that the applicant had not demonstrated any grounds upon which the court could interfere with the decision. The court emphasised the importance of respecting the decision-making processes of the Executive, and the limited role of the courts in reviewing such decisions.

Orders

Orders of the court

The application is dismissed.

The applicant must pay the first respondent’s costs in the sum of $5000.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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