Seema v Minister for Immigration and Citizenship [2012] FCA 257

Seema v Minister for Immigration and Citizenship [2012] FCA 257

The Federal Magistrate did not err. Employment undertaken before the first appellant completed the Certificate III did not qualify as employment in the skilled occupation of cook because the ASCO classification's skill level requirements were imported into the skilled occupation assessment. It was also open to the Tribunal, on credibility grounds and given the absence of requested corroborative original payslips, bank statements and superannuation statements, not to be satisfied that the first appellant was employed as a cook by New Bombay Fusion. The Tribunal's invitation for further corroborative evidence and subsequent rejection of the claim did not establish apprehended bias.

Jurisdiction
Australia
Judgment Date
20 March 2012
Procedural Posture
Migration Appeal From the Federal Magistrates Court of Australia Concerning Refusal of a Skilled (residence) (class Vb) Visa (subclass 885) / Appeal to the Federal Court of Australia From Dismissal of Judicial Review Application
Outcome
Appeal dismissed with costs.
Legal Topics
['skilled (residence) (class Vb) Visa (subclass 885)' 'points Test' 'australian Employment Qualifications' 'migration Occupation in Demand List' 'jurisdictional Error' 'apprehended Bias' 'credibility Findings']
['migration Law' 'administrative Law'] ['skilled (residence) (class Vb) Visa (subclass 885)' 'points Test' 'australian Employment Qualifications' 'migration Occupation in Demand List' 'jurisdictional Error' 'apprehended Bias' 'credibility Findings']

Case Brief

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Procedural Posture

Migration Appeal From the Federal Magistrates Court of Australia Concerning Refusal of a Skilled (residence) (class Vb) Visa (subclass 885) / Appeal to the Federal Court of Australia From Dismissal of Judicial Review Application

Legal Issues

  1. 1 ["Whether employment as a cook before completion of the appellant's Certificate III in Hospitality (Commercial Cookery) could count as employment in a skilled occupation for the Australian employment and MODL points categories." 'Whether it was open to the Tribunal not to be satisfied that the appellant was employed as a cook by New Bombay Fusion from 1 January 2008 until 25 August 2008 despite tax return and PAYG material.' "Whether the Tribunal's conduct gave rise to apprehended bias."]

Ratio Decidendi

The Federal Magistrate did not err. Employment undertaken before the first appellant completed the Certificate III did not qualify as employment in the skilled occupation of cook because the ASCO classification's skill level requirements were imported into the skilled occupation assessment. It was also open to the Tribunal, on credibility grounds and given the absence of requested corroborative original payslips, bank statements and superannuation statements, not to be satisfied that the first appellant was employed as a cook by New Bombay Fusion. The Tribunal's invitation for further corroborative evidence and subsequent rejection of the claim did not establish apprehended bias.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal is dismissed.' "The appellants are to pay the first respondent's costs in the amount of $4,454.00."]