YALAMANCHILI v Minister for Immigration

[2014] FCCA 2140

FEDERAL CIRCUIT COURT OF AUSTRALIA

YALAMANCHILI v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2140

Catchwords:
MIGRATION – Judicial review of a decision of Migration Review Tribunal – jurisdictional error not established – application dismissed with costs – no matter of principle.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.16.01

Migration Act 1958 (Cth), s.474

Migration Regulations 1994 (Cth), cl.485.221 of Schedule 2

Applicant: MANASA YALAMANCHILI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 72 of 2014

Judgment of: Judge Simpson

Hearing date: 9 September 2014

Date of Last Submission: 9 September 2014

Delivered at: Adelaide

Delivered on: 9 September 2014

REPRESENTATION

The Applicant: No appearance

Counsel for the Respondents: Mr Prince

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application filed 6 March 2014 is dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant do pay the first respondent’s costs fixed in the amount of SIX THOUSAND, SIX HUNDRED AND FORTY SIX DOLLARS ($6,646).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 72 of 2014

MANASA YALAMANCHILI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex-tempore reasons settled from transcript)

Introduction

1. I have before me today an application for judicial review of a decision of the Migration Review Tribunal to affirm a decision not to grant the applicant a Skilled (Provisional) (Class VC) Graduate Visa (“the visa”). The Tribunal’s decision is a privative clause decision within the meaning of s.474 of the Migration Act 1958 (Cth). To succeed the applicant must establish that the Tribunal’s decision is infected by jurisdictional error.

2. The applicant’s name has been called three times, and the applicant does not appear.  Despite the non-attendance, I have decided that I will go ahead and examine the merits of the case. 

Background

1. The background to the matter is that the applicant is a citizen of India.  On or about 4 December 2012 she lodged an online application for the visa.  Under the heading “Applicant Skills Assessment” she supplied the following information:

   ·The nominated occupation was transport engineer;

   ·The name of the assessing authority was Engineers Australia;

   ·The date of the skills assessment was 27 February 2012; and,

   ·The reference/receipt number was 2242693. 

2. On 7 March 2013, a departmental officer wrote to the applicant requesting that she provide evidence of her skills assessment as required by cl.485.221(1) of Schedule 2 of the Migration Regulations 1994 (Cth). This clause is a time of decision criterion which provides in paragraph 1:

   “The skills of the applicant for the applicant’s nominated occupation have been assessed by the relevant assessing authority as suitable for that occupation.”

3. No other information was provided.

4. On 19 April 2013, the delegate refused the application. 

The application to the Migration Review Tribunal

1. On 7 May 2013, the applicant applied to the Tribunal for review of the delegate’s decision.  On 6 January 2014, the Tribunal invited the applicant to appear before it to give evidence and present arguments relating to the issues arising in her case.  On 5 February 2014, the applicant appeared at the hearing before the Tribunal.  Later that day, the Tribunal affirmed the decision under review. 

The application to the Federal Circuit Court

1. On 6 March 2014, the applicant applied for judicial review of the Tribunal’s decision by filing an application in this Court.  Looking at the Tribunal’s decision, it noted that to satisfy the primary criteria for the grant of the visa, the applicant had to apply for skills assessment of her nominated skilled occupation and been assessed as suitable for that occupation. 

2. The Tribunal had this to say at paragraph 8 of their reasons:

   “The applicant claimed at hearing that she had applied for her skills assessment on 27 April 2012 and had received a letter on 7 June 2012, indicating that her academic documents had not been certified and requiring her to provide further documents and information.  The applicant said that she had been afraid and scared of the outcome if she was refused the skills assessment and so had not responded to the letter.

   The Tribunal asked whether she was saying that she had taken no action to obtain a skills assessment after June 2012, and she confirmed this and said that this had been because she was afraid.  The applicant requested more time to provide a skills assessment.  The Tribunal discussed with the applicant the numerous times on which she had been requested to provide a skills assessment after lodging the visa application and indicated that on this basis that further time would be granted. 

   The Tribunal finds that the applicant’s skills had not been assessed as suitable for the nominated occupation by the relevant assessing authority and that the applicant therefore did not satisfy the requirement of clause 485.221(1).”

3. The Tribunal affirmed the decision not to grant the visa. 

4. The application filed contains only one ground.  I read this ground verbatim:

   “I applied for Skilled (Provisional) (Class VC) Subclass 485 (Skilled Graduate) Visa on 4.12.12, which was refused on 19.4.13 because I could not provide skills assessment, but I am in the process of getting my skills assessment.  My request for giving me an extension was refused by the Migration Review Tribunal on 7.2.2014.  I want to now put application with court so that my case can be heard, and I can get the opportunity to provide required skills assessment.”

5. I infer from the ground that the only complaint that the applicant makes is that the Tribunal did not allow the applicant more time to obtain her skills assessment. 

6. The applicant was invited to appear before the Tribunal and did so.  There is nothing to suggest any want of process in the Tribunal’s approach to that invitation or the conduct of the hearing.  The applicant gave evidence before the Tribunal that she had not taken any action to seek a skills assessment since 7 June 2012, some 18 months before the hearing in the Tribunal. 

7. The Tribunal’s finding that the applicant’s skills had not been relevantly assessed was open on the evidence. The finding of fact was a matter for the Tribunal. On the basis of that finding, properly made, the applicant clearly did not satisfy the requirements of cl.485.221(1). The Tribunal affirmed the delegate’s decision.

Conclusions

1. In my view, the Tribunal’s conclusion was not unreasonable, irrational or illogical.  It was, in fact, inevitable.  In my opinion, there is no jurisdictional error to be identified in the Tribunal’s reasons, and for the above reasons, the application will be dismissed. 

2. I make the orders to be found at the beginning of these reasons.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date: 22 September 2014