SINGLA v Minister for Immigration

[2018] FCCA 3637

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGLA v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3637

Catchwords:
MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: NITIN SINGLA

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 491 of 2016

Judgment of: Judge Vasta

Hearing date: 26 November 2018

Date of Last Submission: 26 November 2018

Delivered at: Perth

Delivered on: 26 November 2018

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. That the Application filed 14 October 2016 is dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 491 of 2016

NITIN SINGLA

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 22 September 2016, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision not to grant the Applicant a skilled provisional class VC visa.  The background to this decision is as follows.  The Applicant is a citizen of India who first arrived on Australia on 13 October 2008 as the holder of a student visa.  On 21 January 2011, he lodged an application for this particular visa with the nominated occupation of cook.  The department wrote to the Applicant on 22 November 2011 requesting further information.

2. There was no further information given in response to this request.  On 10 January 2012, a delegate of the Minister decided not to grant the Applicant a visa.  On 19 June 2015, that decision was revoked because the case was identified as part of an operation conducted by the department where a firm was offering to assist clients to obtain work visas and provide bogus email addresses.  As a result, notification of the decision was defective. 

3. On 1 July 2015, the Department again wrote to the Applicant requesting further information to support his visa application; again, no further information or documents were provided by the Applicant. 

4. On 4 August 2015, the delegate of the Minister made the decision not to grant the Applicant a visa.  The Applicant lodged the application with the Tribunal seeking review of that decision.  The AAT had held a hearing on 22 September 2016; the Applicant appeared by telephone and was assisted by a Punjabi interpreter.

5. At the hearing, the Tribunal went through the application.  It must be noted that there were two aspects that the Applicant had to show to the Tribunal: 

   a)firstly, that he had evidence of completing a competent level of English language and,

   b)secondly, that he had evidence of a successful skill assessment outcome for his nominated occupation of cook.

6. The Tribunal asked him his personal details, which he gave, and the Tribunal asked the Applicant why he did not provide any documentary evidence of completing his studies in Australia.  He said that his migration agent should have done that. When it was noted that the migration agent had not attended the hearing, the Applicant said that he refused to pay him. 

7. The AAT asked the Applicant if he now had evidence of a successful skill assessment outcome for his nominated occupation of a cook; he said that he did not have a positive skills assessment outcome and that his migration agent told him that he will obtain one on his behalf.

8. He confirmed that, at the day of the hearing, he did not have such an assessment. 

9. The AAT then asked the Applicant if he had ever taken an English language test.  He stated that he had taken the IELTS test in 2008 when he arrived in Australia and achieved an overall band of five but he said that he has not attempted further English language testing after 2008.  The AAT explained to the Applicant that because he was unable to provide evidence of having competent English, as required by the legislation, or evidence of a successful skill assessment, as also required by a different part of the legislation, he could not meet the requirements for the grant of the visa.

10. He told the AAT that he had tried to find a job but it was very difficult.  The AAT, at paragraph 17, when talking of the English language competency, said this:

    17. As at the date of this decision there is no evidence before the tribunal that the applicant has achieved the requisite score in an IELTS test.  There is no evidence before the tribunal the applicant has achieved, in a test conducted not more than 2 years before the day on which the application was lodged, an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening.  The tribunal is not satisfied that he meets r.1.15C(a)(i).

11. The Tribunal therefore found that the Applicant did not have competent English as defined in that regulation.  When talking about the nominated occupation, the AAT said this at paragraph 15:

    15. Based on the evidence before me, including oral evidence given the applicant at the hearing, I find that the applicant’s skills have not been assessed as suitable for the nominated skilled occupation by the relevant assessing authority.  There is no evidence on the Departmental or tribunal file that the applicant has obtained successful skill assessment for his nominated occupation of Cook. Therefore, the applicant doesn’t satisfy the requirements of the cl.485.221(1). 

12. Therefore, because the Applicant did not meet both those criteria, the Tribunal found that the Applicant did not satisfy the criteria for the grant of a subclass 485 visa;  that is why the decision was affirmed. 

13. By application filed on 14 October 2016, the Applicant asked this Court to review the decision.  There were six grounds: 

    1. There are some Jurisdictional errors in M.R.T decision.

    2. The M.R.T member did not assess my Skilled Provision (Class VC) properly.

    3. The M.R.T deprived me of Natural Justice.

    4. The M.R.T member made an error law since the Decision the M.R.T member made regarding my case is wrong.

    5. The M.R.T member made an error of law for not considering my case.

    6. The M.R.T member made an error of Law by not considering evidences which were significant and critical to the Decision under Review.

14. All of that is somewhat “gobbledygook” and does not actually get to what is the real problem with this matter.  There are two criteria that the Applicant needed to fulfil and he just simply did not fulfil them. 

15. I asked the Applicant what else he wanted to say.  He said to me that the mistake that the Tribunal made was they told him that he had to get out of the country and apply from then.  When I queried that, it was not that anyone told him that; it was that the forms given to applicants are really saying that if these criteria are not met and the matter is dismissed, then the Applicant has no right to stay in the country and will have to leave the country.

16. That could hardly be seen to be an error.  The Applicant complained that he has not been able to find a job.  He claimed that the error is an error according to him because he was doing perfectly fine but his problem is that he is looking for a job and he cannot find a job and using all of his energy to look for a job, he cannot do that if he is trying to improve his English. 

17. He then made another claim that had no relevance to this matter in that he said that they obviously, meaning the department – made a mistake in 2015 by letting him study.

18. All of that material, whilst it may be interesting, did not get to the fact of the matter; that is, that unless the Applicant can prove to the Tribunal that he meets the criteria for competent English and that he has a proper skills assessment, the Tribunal cannot give him a visa.  He still has not been able to demonstrate to me what, if any, jurisdictional error has been made. 

19. Having a look at the Tribunal’s decision and having a look at all the evidence, the Tribunal made the only decision that was open to them on the evidence.

20. I find that there has been no jurisdictional error.  I therefore dismiss this application with costs in the sum of $6000.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 10 January 2019