Singh v Minister for Immigration
[2012] FMCA 1101
•19 November 2012
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 refused.
Schedule 2 of the Migration Regulations 1994 sets out the criteria to be met for the grant of Skilled (Provisional) (class VC) subclass 485 (Skilled – Graduate) visa. 485.221 is one of the mandatory requirements for the grant of the visa and it states:
Reg. 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.
On 6 January 2011 the Department of Immigration and Citizenship received correspondence from Trades Recognition Australia that your skills assessment has been revoked. As you do not hold a valid skills assessment issued by the relevant assessing authority for your nominated occupation you are unable to meet the requirements of 485.221.
It is unnecessary to repeat the terms of cl.485.221, although it is noted that this is a time of decision criterion, requiring evidence of a relevant trade assessment in existence and current at that time.
It is unnecessary to trace the Regulations’ definition of relevant assessing authority, except to note that this term is defined in reg.1.03 by reference to reg.2.26B. That regulation provided at relevant times:
2.26B Relevant assessing authorities
(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.
Mr Singh lodged an application to the Migration Review Tribunal for review on 1 September 2011. In his application, he did not appoint a representative, and directed that any correspondence should be sent to him at his identified home address at Seven Hills. He provided a mobile telephone number, but no other telephone number.
The Tribunal on 14 May 2012 sent by registered post to that address an invitation to Mr Singh to attend a hearing on 8 June 2012.
After it was sent, the Tribunal received on 20 May 2012 a facsimile from a registered migration agent, Mr Khalsa, enclosing a notice of his appointment as a representative for Mr Singh, but not as Mr Singh’s authorised recipient for correspondence.
The email from Mr Khalsa noted that Mr Singh “will be attending the interview”. However, on the afternoon before the hearing, Mr Khalsa sent to the Tribunal a medical certificate of Mr Singh’s unfitness for work, and told the Tribunal “accordingly, he will not be able to attend the MRT Hearing on 8 June 2012”.
The Tribunal later said that it had doubts about the adequacy of the medical certificate, but said that it had decided to offer Mr Singh another opportunity to appear. On 13 June 2012, the Tribunal caused a registered letter to be sent to Mr Singh’s address at Seven Hills. The letter referred to the request for postponement, and said that the hearing had been rescheduled to 5 July 2012 at 3.30 pm.
The Court Book contains a case note made by a Tribunal officer on 27 June 2012, which recorded:
No reply check to no response to hearing invitation.
I attempted to call the applicant twice as well as Rep’s mobile, however the calls went unanswered. I also called Rep’s landline and after a period, the call was diverted to a mobile number which was not listed on the Tribunal’s database. I did not leave a voice message.
A short time later, I rang the landline again to note the mobile number and a male answered, stating it was Superior Migration. I asked if I could speak to Mr Khalsa and was asked what I was calling in relation to. I stated I was calling from the Migration Review Tribunal and asked again if I was speaking with Mr Khalsa. Mr Khalsa confirmed it was himself speaking and I explained the Tribunal had not received a hearing response to RA’s invitation. Rep stated he (referring to himself) never received the invitation. I explained that he was only listed in our system as a representative and not an authorised recipient. I requested the Rep notify the RA of my call and return the hearing response form as I had been unable to leave a message for him. Rep also requested to know the date and time of the hearing and I informed him of this.
However, there was no attendance at the rescheduled hearing by Mr Singh or his representative. No communication was made to the Tribunal to explain their absence, and the Tribunal proceeded to make a decision in the case without further attempting to contact Mr Singh.
It appears to me that the Tribunal’s procedures accorded with the requirements of the Migration Act 1958 (Cth) in relation to notification of rescheduled hearings. In particular, as it has been held in Minister for Immigration & Multicultural & Indigenous Affairs v SZFML & Anor (2006) 154 FCR 572, [2006] FCAFC 152 at [82], the Tribunal was required to, and did, in my opinion, provide a reasonable time before rescheduling the hearing, and it took reasonable steps to bring that hearing to Mr Singh’s notice. In my opinion, the Tribunal having taken those steps, had the power to proceed to make a decision in the absence of further communications from Mr Singh or his agent and in their absence from the notified hearing.
The Tribunal’s decision is dated 5 July 2012, and affirmed the delegate’s decision.
In its statement of reasons, the Tribunal noted the most recent instrument made by the Minister under the Migration Regulations, which specified relevant skilled occupations, including ‘cook’, and the relevant assessing authority in relation to that occupation. The instrument had been made with a commencement date on 1 July 2012, and is numbered IMMI 12/068. In that instrument in paragraph 2 and Schedule 1A, the Minister identified the TRA as the assessing authority in relation to the occupation of cook ASCO code 4513‑11.
The Tribunal said in its reasons:
18.The issue in the present case is whether the applicant’s skills had been recognised as suitable by the relevant assessing authority for the nominated occupation.
19.When making the application, the applicant nominated the occupation of a Cook (ASCO 4513‑11), which is a skilled occupation specified in IMMI12/068. For that occupation, the relevant assessing authority specified in that instrument is TRA.
20.The applicant provided to the Tribunal a copy of the primary decision record which indicates that DIAC received correspondence from the TRA in January 2011 indicating that the applicant’s skills assessment had been revoked. The Tribunal finds on the basis of the primary decision record, a copy of which the applicant provided to the Tribunal, that the applicant’s earlier skills assessment issued by the TRA has been revoked and is no longer valid.
21.The applicant has not provided any evidence that he had applied for reassessment or that he had otherwise obtained a positive skills assessment from the TRA. The Tribunal is not satisfied on the evidence before it that the skills of the applicant had been assessed by the relevant assessing authority, TRA, for his nominated occupation of Cook. Therefore, the Tribunal is not satisfied that the applicant meets the requirements of cl.485.221 and cl.487.223.
It appears to me that the Tribunal’s reasoning reveals no error of law in its application of cl.485.221, and that its adverse conclusion was open to it on the evidence before it. In particular, since the evidence cited in the primary decision was uncontradicted by any other evidence, and pointed to the absence, rather than the contrary, of a current skills assessment by the TRA confirming Mr Singh’s skills in his nominated occupation.
There is a recent line of authority in this Court, which has addressed the significance of the absence of an approval given by the Education or Employment Minister for the purposes of reg.2.26B(1A), which was in existence at the time when the Minister made an earlier instrument specifying the TRA as a relevant assessing authority. The authorities in this respect were examined by Barnes FM recently in Zhang v Minister for Immigration & Anor [2012] FMCA 1011.
Barnes FM addressed a situation similar to the present situation, albeit that her case concerned a different subclass of visa, and the validity of an instrument made by the Minister which immediately preceded the presently relevant instrument. However, as her Honour noted, the previous difficulties had been overcome, by the making of an instrument of approval by the Education Minister dated 15 September 2011, which was then followed by the making of a new instrument by the Minister for Immigration under reg.2.26B(1) on 28 September 2011. That instrument has, in turn, been replaced by the present instrument taking effect on 1 July 2012.
Barnes FM addressed numerous arguments against the legal effectiveness of the procedures followed within the Department of Immigration and the Education Department Ministry, but rejected them. It appears to me, with respect, that her Honour’s reasoning would be equally applicable to the present Tribunal’s decision, which applied and gave effect to IMMI 12/068. As Barnes FM noted in her judgment, cl.485.221 is a time of decision criteria, which requires reference to the instrument specifying the relevant assessing authority which has been most recently made, even if it was made some time after the making of the visa application.
It is therefore clear that there was in existence at the time of the present decision a relevant and valid designation of the TRA as relevant assessing authority. Mr Singh was required, and failed, to satisfy the Tribunal that there was in existence and current at that time a favourable assessment by TRA of his skills as a cook.
Mr Singh’s application to this Court was filed on 24 July 2012, and seeks orders by way of judicial review of the Tribunal’s decision. I have power to give him relief only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether Mr Singh should be granted a permission to stay in Australia. Neither I nor the Tribunal have powers to waive compliance with criteria prescribed in the Migration Regulations.
Mr Singh’s application to the Court has the following as its grounds:
1.Tribunal error by not considering that qualification received in Australia are equivalent to qualification received in Australia.
2.Tribunal errored by requiring additional standards (above Australian standards).
These grounds are difficult to understand, and Mr Singh has not been able to clarify them in his oral submissions today.
I think, in effect, his grounds and his submissions invited the Court to find that the Tribunal was not bound to apply the criteria for cl.485.221, and could waive or overlook the requirement that he have a current favourable assessment by the TRA of his skills and qualifications as a cook. He suggests that the Tribunal could have made its own assessment, based upon evidence of his qualifications and experience. However, the criterion does not so provide, and in my opinion it clearly required evidence of a current assessment made by a different administrative agency, the TRA.
On the evidence that was before the Tribunal, the initial TRA assessment, whether valid or invalid at the time it was made, had been withdrawn by the assessing authority, and there was no evidence before the Tribunal that the TRA had made a subsequent favourable assessment. Indeed, Mr Singh told me today that he had not been able to obtain a further assessment from the TRA.
In my opinion, the Tribunal gave effect to the terms of the criterion in cl.485.221, and did not impose any different, ‘additional’, or ‘higher’ test of his trade skills.
I can therefore find no error in the substantive reasoning of the Tribunal.
Mr Singh today raised a new point, which had not been raised at all in his application to the Court or his affidavit in support. This was his assertion that, in fact, he had not received the Tribunal’s letter appointing the postponed hearing date. He asserted this fact without verification, and without attempting to explain why this registered post communication had not been received by him, notwithstanding that all other communications from the Department and Tribunal had reached him at that address. Nor did Mr Singh explain why his agent did not communicate with him to confirm his required attendance, but merely asserted that his agent had not contacted him.
In my opinion, on the current evidence before me, even assuming that Mr Singh’s statements would have been repeated on oath in the witness box, I am not satisfied that the Tribunal failed to follow any procedure required by the Migration Act, before making its decision.
In particular, as I have found above, I consider that the Tribunal took reasonable steps to appoint a postponed hearing date and to bring it to the attention of Mr Singh and his representative. In my opinion, Mr Singh’s assertions today point at best to an unfortunate failure of communication in relation to the Tribunal’s efforts, but do not point to jurisdictional error affecting its procedures and invalidating the decision it made.
I am therefore not satisfied that Mr Singh has identified any jurisdictional error allowing me to grant relief in relation to this Tribunal’s decision.
I must therefore dismiss the application.
I certify that the preceding thirty–three (33) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 30 November 2012