Singh v Minister for Immigration and Citizenship

[2013] FCA 166

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Citizenship [2013] FCA 166

Citation:		Singh v Minister for Immigration and Citizenship [2013] FCA 166
Appeal from:		Ranjeet Singh v Minister for Immigration & Anor [2012] FMCA 1101
Parties:		RANJEET SINGH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL
File number:		NSD 1975 of 2012
Judge:		COLLIER J
Date of judgment:		5 March 2013
Catchwords:		MIGRATION – Skilled Graduate (Provisional) Class VC (Subclass 485) visa – cl 485.221 Sch 2 to the Migration Regulations 1994 (Cth) – revocation of skills assessment by Trades Recognition Australia – at time of revocation Trades Recognition Australia not approved as an assessing authority by relevant Minister – subsequent legislative instrument rectifying defect – rectification prior to decision of Tribunal – cl 485.221 a time of decision criterion – appropriate steps taken by Tribunal to reschedule hearing
Legislation:		Migration Act 1958 (Cth) Migration Regulations 1994 (Cth) Pt 485 of Sch 2, cl 485.221, r 2.26B
Cases cited:		Singh v Minister for Immigration [2012] FMCA 145 cited
Date of hearing:	4 March 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	35
Counsel for the Appellant:	The Appellant appeared in person
Counsel for the First Respondent:	Ms AM Mitchelmore
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	The Second Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1975 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

RANJEET SINGH
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	5 MARCH 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The appeal be dismissed with costs, fixed in the sum of $4,250.00.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1975 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

RANJEET SINGH
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE:	5 MARCH 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Federal Magistrates Court delivered on 19 November 2012, dismissing an application for judicial review of a decision of the Migration Review Tribunal (the Tribunal).

2. Mr Singh is an Indian citizen who arrived in Australia on October 2007 on a student visa. On 8 December 2009 the appellant applied for a Skilled Graduate (Provisional) Class VC (Subclass 485) visa. A delegate of the first respondent made a decision to refuse the application for the visa on 18 August 2011 on the basis that the delegate was not satisfied that Mr Singh’s skills had been assessed as suitable by the relevant assessing authority.

3. On 1 September 2011, Mr Singh sought a review of the delegate’s decision with the Tribunal.

   Events in the Tribunal

4. The Tribunal had before it the Department’s file relating to Mr Singh and other material from a range of sources.

5. The criteria for a Subclass 485 visa are found in Pt 485 of Sch 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”). In particular, cl 485.221 requires that the visa applicant’s skills have been assessed as suitable for the nominated skilled occupation by the “relevant assessing authority”. “Relevant assessing authority” means a person or body specified under r 2.26B of the Migration Regulations, and includes the entity Trades Recognition Australia.

6. It appears that Mr Singh completed an Advanced Diploma of Hospitality Management between October 2007 and August 2009. On his visa application form he nominated his occupation as “cook”. He also stated that he had applied for a skills assessment to Trades Recognition Australia on 26 November 2008, and provided the relevant reference number.

7. The Tribunal noted the findings of the delegate that (in summary):

   ·it was apparent from the material before the delegate that Mr Singh’s skills assessment had been revoked by Trades Recognition Australia;

   ·accordingly Mr Singh did not have evidence that his skills had been assessed as suitable by the relevant assessing authority; and

   ·the delegate was not satisfied that Mr Singh met the requirements of cl 485.221.

8. Mr Singh applied to the Tribunal for review of the delegate’s decision. A Tribunal hearing was scheduled to take place on 8 June 2012, however Mr Singh provided a medical certificate indicating that he was unfit to work and therefore unable to attend the hearing scheduled for that date. The Tribunal rescheduled the hearing to 5 July 2012. Although Mr Singh was sent an invitation to the hearing and the Tribunal contacted his representative by phone and advised of the rescheduled hearing date, neither Mr Singh nor his representative attended. No explanation was provided to the Tribunal for Mr Singh’s non-attendance at the rescheduled hearing.

9. The Tribunal confirmed the finding of the delegate that the Trades Recognition Australia assessment for the nominated position of cook, which had been submitted by Mr Singh as part of his visa application, was no longer valid because it had been revoked in January 2011. As the appellant had not provided any evidence to the Tribunal that he had reapplied for assessment or otherwise obtained a positive assessment from Trades Recognition Australia, the Tribunal was not satisfied that he met the requirements of cl 485.221 of the Migration Regulations.

10. On 5 July 2012 The Tribunal affirmed the decision of the delegate.

    The proceeding before the Federal Magistrate

11. Mr Singh sought judicial review of the decision of the Tribunal in the Federal Magistrates Court. He relied upon the following grounds:

    1.Tribunal error by not considering that qualification received in Australia are equalevent to qualification received in Australia

    2.Tribunal errored by requiring additional standards (above Australian standards)

    (Reproduced as appears in original.)

12. At the hearing in the Court below Mr Singh appeared in person and made oral submissions in support of his grounds of review.

13. In dismissing Mr Singh’s application, his Honour observed that Mr Singh’s grounds of review were difficult to understand. His Honour surmised the Court was invited to find that the Tribunal could have made its own assessment of the appellant’s qualifications, and that the Tribunal did not require a favourable Trades Recognition Australia assessment in order to grant him the visa. His Honour found however that the Tribunal was required by the Migration Regulations to consider evidence of a current Trades Recognition Australia assessment, that the Tribunal had given effect to those regulations, and further that the Tribunal had not imposed a higher test as alleged by Mr Singh.

14. In relation to the appellant’s oral submission that he had not been advised of the second Tribunal hearing, his Honour found that the Tribunal took all reasonable steps to bring the rescheduling of the hearing to the appellant’s attention, and that in any case this submission did not point to any jurisdictional error.

    Grounds of appeal

15. The appellant’s notice of appeal set out the following grounds:

    1.The Federal Magistrates Court made an error of law by not saying anything about the improper notification by the Migration Review Tribunal in relation to the Second Hearing.

    2.The Federal Magistrates Court made an error of law by not properly considering the issue of whether the Trade Recognition Authority was authorised to consider requirements different that [sic] Australians undertaking the same course.

    3.The Federal Magistrates Court did not properly consider the issue of whether the Trade Recognition Authority was authorised to consider requirements different that Australians undertaking the same course.

16. At the hearing before me yesterday Mr Singh appeared in person. The Minister was represented by Counsel.

17. Mr Singh did not file written submissions.

18. At the hearing yesterday however, Mr Singh submitted that a strong analogy could be drawn between the facts of his case and those in Singh v Minister for Immigration [2012] FMCA 145 (“Singh”), where the Federal Magistrates Court quashed the decision of the Tribunal, and remitted the decision to the Tribunal for rehearing. Ms Mitchelmore for the Minister submitted, in summary, that Singh was not relevant to determination of the appeal currently before the Court.

    Consideration

19. In my view the appeal should be dismissed, for the following reasons.

20. First, I do not accept that the Federal Magistrate erred “by not saying anything about the improper notification by the Migration Review Tribunal in relation to the Second Hearing”. At [13] of the Court’s reasons for decision his Honour observed:

    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 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.

21. At [29]-[31] of the reasons for decision his Honour continued:

    [29]     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.

    [30] 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.

22. It is clear from these comments that his Honour did have regard to Mr Singh’s claim that the Tribunal did not notify him of the rescheduled hearing, and dismissed it.

23. It follows that the first ground of appeal is not substantiated.

24. Further, it appears that the second and third grounds of appeal raise the same point – namely a claim that the Federal Magistrate did not properly consider the issue of whether, in relation to Mr Singh, “the Trades Recognition Authority was authorised to consider requirements different that Australians undertaking the same course”. This ground of appeal is somewhat unclear, however I understand the point Mr Singh is seeking to make is that because he is not an Australian citizen, applying for a subclass 485 visa, Trades Recognition Australia should have treated him differently to the manner in which it would have treated an Australian citizen.

25. Mr Singh had raised a similar issue before his Honour below. However in my view these grounds of appeal are misconceived. Mr Singh had applied for a subclass 485 visa, and is subject to the Migration Act 1958 (Cth) and the Migration Regulations in relation to that application. His Honour explained at [25]-[28]:

    [25] 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.

    [26]     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.

    [27] 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.

    [28]     I can therefore find no error in the substantive reasoning of the Tribunal.

26. Similarly, I can find no error in his Honour’s reasoning.

27. It follows that the second and third grounds of appeal are not substantiated.

28. In relation to Mr Singh’s submission concerning the decision of the Federal Magistrate’s Court in Singh, I am not persuaded that – despite some similarities in facts - that case is helpful in the proceeding before me. In summary, the applicant in Singh had applied for a subclass 485 Skilled Graduate (Temporary) (Class VC) visa on 7 July 2009, had nominated his occupation as cook, and had obtained a successful skills assessment for the occupation of cook from Trades Recognition Australia on 28 September 2009. The applicant’s visa application was refused by the Minister on 31 August 2010. On 31 August 2011 the Tribunal affirmed the decision of the delegate on the basis that, in summary:

    ·the applicant had provided information on the visa application which was false and misleading in a material particular; and

    ·the Tribunal concluded that the applicant had not been employed at two restaurants where he had claimed to work as a cook (and which was therefore information relating to his employment, which was false or misleading in a material particular).

29. Before the Federal Magistrate the applicant in Singh claimed, inter alia, that there was no evidence that Trades Recognition Australia had been approved in writing to be the relevant assessing authority for the occupation of cook, the Tribunal erred in determining that Trades Recognition Australia was such an authority, and without a validly approved and specified relevant assessing authority for the occupation of cook the applicant could not possibly meet the visa requirements.

30. There appeared to be evidence before his Honour in Singh that false and misleading information had been provided by the applicant. However, critically, Federal Magistrate Driver observed at [65] as follows:

    [65]At the time of the Tribunal decision, as is conceded by the Minister, TRA had no relevant function as it had not been approved as an assessing authority by the Education Minister or the Employment Minister. It had been purportedly specified as a relevant assessing authority by the Minister for Immigration in instrument IMMI 11/034 but that specification was invalid by reason of regulation 2.26B(1A). The position was purportedly rectified by the Minister for Tertiary Education, Skills, Jobs and Workplace Relations by instrument of approval dated 15 September 2011 and by the Minister for Immigration by instrument dated 28 September 2011. At the time of application for the visa sought by Mr Singh, the Regulations required, among other things, that the Minister be satisfied that the applicant has applied for an assessment of the applicant’s skills or the nominated skilled occupation by a relevant assessing authority. The Regulations further required that, at the time of decision, the skills of the applicant for the applicant’s nominated skilled occupation had been assessed by the relevant assessing authority as suitable for that occupation.

    [66]There is no issue of invalidity in respect of the relevant visa criteria. In their terms, those criteria had no application in Mr Singh’s case at the time of the decision by the Tribunal because of the failure of the respective Ministers to lawfully approve and specify a relevant assessing authority. It does not follow, however, that no valid visa decision could be made in respect of Mr Singh’s visa application. There were other criteria that Mr Singh needed to satisfy at the time of application and at the time of decision. Among other things, at the time of decision, Mr Singh was required to satisfy criterion 485.224 which specified that he satisfied public interest criterion 4020.

    [67]Clause 4020(5) specifies that information that is false or misleading in a material particular means information that is false or misleading at the time it is given and relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

    [68]The Tribunal found that Mr Singh had given false information about his employment (and hence his work experience) in his visa application and to the Tribunal. The Tribunal found that this information was false or misleading in a material particular, presumably because it bore upon the assessment of his skills for his nominated skills occupation. However, as I have found, the visa criteria applicable at the time of the Tribunal’s decision did not include criterion 485.214 or criterion 485.221 because no relevant assessing authority had been lawfully approved or specified for the purposes of those criteria. There was, in my view, at the time of the Tribunal decision, no other visa criteria upon which the allegedly false information could materially bear.

    [69]Accordingly, I find that the Tribunal was in error in finding that the information provided by Mr Singh was false or misleading in a material particular in relation to his visa application. The Tribunal misunderstood what were the applicable visa criteria because of the failure by the respective Ministers to lawfully approve and specify TRA to enliven those criteria. Those criteria are now operative by reason of the necessary approval and specifications apparently having been given. The instrument signed by the Minister purports to have effect in respect of visa applications made before 1 July 2010 and it was not argued before me that the instrument is invalid by reason of its retrospective operation. I infer, therefore, that Mr Singh would be able to satisfy clause 485.214 of the criteria to be satisfied at the time of application. If the matter is remitted to the Tribunal for further consideration, there will probably be an opportunity for Mr Singh to obtain a further assessment by TRA on the basis of such information as he chooses to provide for the purposes of seeking to satisfy criterion 485.221. In the light of what may occur, the Tribunal can give further consideration to the application of PIC 4020.

    (Footnotes omitted.)

31. Mr Singh in the current appeal submits that the facts in his case are, in substance, the same as those in Singh. They are not. The critical difference is that, by the time of the decision of the Tribunal in the case before me (that is, 5 July 2012) the legislative defect in relation to Trades Recognition Australia had been rectified. As Federal Magistrate Smith explained at [15] in his reasons for decision in this proceeding:

    [15]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.

1. After discussing authorities which had considered the significance of the absence of an approval in relation to entities including Trades Recognition Australia, his Honour concluded at [20]-[21]:

   [20]... 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.

   [21]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.

   (Emphasis added.)

2. In my view this reasoning is sound, and should not be disturbed.

3. At the hearing yesterday I observed that there was no indication in the Tribunal’s decision of the reason why Mr Singh’s skills assessment had been revoked by Trades Recognition Australia. Mr Singh indicated from the bar table that he did not know why this had occurred. An absence of reasons for such an important decision by Trades Recognition Australia would be very surprising, considering the gravity of the consequences for Mr Singh. I note, however, that the Tribunal is not required to inquire into the reasons for a skills assessment (or lack thereof). Accordingly, it is not necessary for me to comment further in respect of this aspect of the case.

4. The appeal should be dismissed with costs, fixed in the sum of $4,250.00.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:       5 March 2013