Rai v Minister for Immigration and Citizenship

Federal Court of Australia|2010-12-02|Before: Moore J

introduction 1 The applicant appears to be a citizen of Nepal, who applied for a Skilled (Provisional) (Class VC) subclass 485 (Skilled - Graduate) visa on 10 December 2007. A delegate of the first respondent refused the application on 8 December 2008 on the basis that the applicant did not satisfy clauses 485.214 or 487.214 of Schedule 2 to the Migration Regulations 1994. On 1 January 2009 the applicant applied to the Migration Review Tribunal for a review of that decision. In a decision on 24 February 2010, the Tribunal affirmed the delegate's decision. This is an application for an extension of time to file and serve a notice of appeal from a judgment of a Federal Magistrate dismissing her application for judicial review of the Tribunal's decision.

BACKGROUND 2 The Skilled (Provisional) (Class VC) visa enables graduates of Australian educational institutions and people who have held certain temporary skilled visas to reside in Australia temporarily in order to obtain skills and qualifications required for the grant of permanent general skilled migration visas. At the time the applicant's visa application was lodged, the Skilled (Provisional) (Class VC) visa class contained the following subclasses: Subclass 485 (Skilled - Graduate) and Subclass 487 (Skilled - Regional Sponsored). The criteria for the grant of a subclass 485 or a subclass 487 visa are set out in Parts 485 and 487 respectively, of Schedule 2 to the Regulations. Relevantly, subclauses 485.214 and 487.214 provide: 485.21 Criteria to be satisfied at time of application … 485.214 The Minister is satisfied that the applicant has applied for an assessment of the applicant's skills for the nominated skilled occupation by a relevant assessing authority. 487.21 Criteria to be satisfied at time of application … 487.214 The Minister is satisfied that the applicant has applied for an assessment of the applicant's skills for the nominated skilled occupation by a relevant assessing authority. 3 In her visa application, the applicant nominated her skilled occupation as that of a Chemist (Australian Standard Classification of Occupation ("ASCO") Code 2111-11). However, the applicant did not indicate in her application whether she had applied for an assessment of her skills for that nominated skilled occupation by a relevant assessing authority. In this instance, the relevant assessing authority was VETASSESS. On 8 December 2008, the delegate refused the applicant's application on the basis that she had failed to demonstrate at the time her application was lodged, that she had applied to VETASSESS for an assessment of her skills for her nominated occupation.

the Tribunal decision 4 Given that the applicant had not applied for a skills assessment to VETASSESS at the time of her visa application, the Tribunal found that the applicant did not satisfy the criteria for the grant of a subclass 485 visa found in cl. 485.214. The Tribunal also found that, as there was no evidence before it that the skills of the applicant for her nominated skilled occupation had been assessed by VETASSESS as suitable for that occupation, at the time of its decision, it was not satisfied that the applicant met the criteria in cls. 485.221 and 487.223. Those clauses provide: 485.22 Criteria to be satisfied at time of decision 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. 487.22 Criteria to be satisfied at time of decision 487.223 (1) The skills of the applicant have been assessed by the relevant assessing authority as suitable for the applicant's nominated skilled occupation. 5 For these reasons, the Tribunal affirmed the decision under review.

the application to the federal magistrates court 6 By application filed in the Federal Magistrates Court of Australia on 24 March 2010, the applicant sought judicial review of the Tribunal's decision. In that application the applicant expressed her grounds of review as follows (without alteration):

The Tribunal ignored my Australian skills.
The Tribunal erred in law in requesting assessment of qualification as I am graduated in Australia. 7 The Federal Magistrate stated that ground one misunderstood the task which the Tribunal had to perform. His Honour noted the Tribunal was not required to consider whether the applicant's skills were sufficiently good to justify the grant of the visa she sought. Rather, that task was delegated to the relevant assessing authority and it was that authority's opinion which, had it existed and been before the Tribunal, would have determined the question of whether the applicant's skills justified the grant of a visa. 8 The Federal Magistrate found that the Tribunal did not err by requesting or requiring an assessment of her qualification, because that is what the regulations required it to do. However, his Honour found that it did err by concluding that, by not having applied for an assessment of her skills at the time of the application, the applicant had not satisfied the criteria found in cls. 485.214 and 487.214 (Berenguel v Minister for Immigration & Citizenship [2010] HCA 8; (2010) 264 ALR 417 at 423). His Honour stated that the applicant could have met that criterion at any time up to the decision on her application. Despite this, his Honour noted a separate and independent basis for the Tribunal's decision was the lack of evidence before it that the applicant had actually had her skills assessed by VETASSESS, as required by cls. 485.221 and 487.223. His Honour held that therefore, even if, on the day before the Tribunal's hearing, the applicant met the requirement contained in cl. 485.214 by applying for an assessment of her skills, the lack of evidence of an actual assessment of her skills as required by cls. 485.221 and 487.223 at the time of the decision, meant her application to the Tribunal would be unsuccessful. 9 The Federal Magistrate noted at [15]: As the Tribunal's decision was properly based on a finding which was not affected by jurisdictional error, the second ground of the application does not satisfy me that the Tribunal's decision should be set aside: VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965 at [25] and [33].

the appeal 10 On 6 August 2010 the applicant filed in this Court an application for extension of time to file and serve a notice of appeal from the decision of the Federal Magistrate. In a draft notice of appeal attached to an affidavit filed on the same date, the following grounds are identified:

His Honour failed to accept my skills as recognised.
MRT failed to accept that my Australian skills should and do not need recognition.
MRT failed to request VETESSESS. 11 The respondent's submissions address these three grounds in the following way. The first ground did not present a relevant issue for the Court, rather the question was whether the Tribunal's decision was affected by jurisdictional error. Second, the recognition of the applicant's skills is a requirement of the visa class for which the applicant has applied and therefore can not be waived. Finally, the Tribunal explained to the applicant that she needed to provide evidence that her skills had been assessed by VETASSESS. It is not relevant that the applicant has subsequently applied for a skills assessment because the Tribunal had to act on the basis of evidence before it. I agree. 12 The appeal is doomed to fail. Time should not be extended. The application is dismissed with costs. 13 It is unnecessary to say anything about the correctness of the Federal Magistrate's conclusion that the Tribunal did err in the way noted in [8] above. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

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