FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2015] FCA 483 

Citation:	Singh v Minister for Immigration and Border Protection [2015] FCA 483	
		
Appeal from:	Application for extension of time: Singh v Minister for Immigration & Anor [2015] FCCA 166 	
		
Parties:	JASWINDER SINGH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL	
		
File number:	VID 78 of 2015	
		
Judge:	KENNY J	
		
Date of judgment:	18 May 2015	
		
Catchwords:	Application for extension of time to appeal judgment of Federal Circuit Court – Insufficient merit in proposed appeal to justify an extension of time – Application dismissed 	
		
Legislation:	Federal Court Rules 2011 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)

Cases cited:	Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 
Vaysman v Deckers Outdoor Corporation Inc (2014) 222 FCR 38 
SZRAP v Minister for Immigration and Border Protection [2015] FCA 261 
Mohammad v Minister for Immigration and Border Protection [2014] FCA 1249 
DZAAD v Minister for Immigration and Citizenship [2013] FCA 204 
SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 
Luck v University of Southern Queensland [2011] FCA 1335 
SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388
Mentink v Minister for Home Affairs [2013] FCAFC 113 WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 
Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417
Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211
Mohammed v Minister for Immigration and Border Protection [2015] FCA 184
VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158
Octavia v Minister for Immigration and Citizenship (2011) 245 FLR 345
Singh v Minister for Immigration and Citizenship (2013) 141 ALD 310
Ugochukwu v Minister for Immigration and Multicultural Affairs [2000] FCA 1602
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 	
		
Date of hearing:	18 May 2015	
		
Place:	Melbourne	
		
Division:	GENERAL DIVISION	
		
Category:	Catchwords	
		
Number of paragraphs:	49	
		
Counsel for the Applicant:	A Aleksov	
		
Solicitor for the Applicant:	Dagama Pereira & Associate P/L	
		
Counsel for the First Respondent:	T Smyth	
		
Solicitor First for the Respondent:	Sparke Helmore Lawyers	
		
The Second Respondent submitted to any order the Court might make, save as to costs.		

IN THE FEDERAL COURT OF AUSTRALIA		
VICTORIA DISTRICT REGISTRY		
GENERAL DIVISION	VID 78 of 2015	
 
BETWEEN:	JASWINDER SINGH
Applicant
	
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	KENNY J	
DATE OF ORDER:	18 MAY 2015	
WHERE MADE:	MELBOURNE	

THE COURT ORDERS THAT:

1.	The application for an extension of time be dismissed.
2.	The applicant pay the first respondent’s costs of the application, such costs to be taxed in default of agreement.

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

IN THE FEDERAL COURT OF AUSTRALIA		
VICTORIA DISTRICT REGISTRY		
GENERAL DIVISION	VID 78 of 2015	
 
BETWEEN:	JASWINDER SINGH
Applicant
	
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	KENNY J	
DATE:	18 MAY 2015	
PLACE:	MELBOURNE	

REASONS FOR JUDGMENT
1		This is primarily an application for an extension of time under r 36.05 of the Federal Court Rules 2011 (Cth) (Federal Court Rules) to file a notice of appeal from a judgment of the Federal Circuit Court (Circuit Court) delivered on 30 January 2015 (Singh v Minister for Immigration [2015] FCCA 166) (CCJ).  A judge of the Circuit Court dismissed an application for judicial review of a decision by the Migration Review Tribunal (Tribunal) affirming a decision of a delegate of the Minister for Immigration and Border Protection (Minister).  The delegate had refused to grant the applicant a Skilled — Independent Overseas Student (Residence) (Class DD) visa (subclass 880 visa).
2		At the hearing, counsel for the applicant indicated that he sought leave to place evidence before this Court that was not before the Circuit Court and leave to raise an issue on appeal that was not raised before the Circuit Court.  This new issue is set out in a proposed new ground of appeal: see [19] below.  Counsel for the respondent did not oppose the Court having regard to the new evidence to the extent that it was indicative of merit in the proposed new ground of appeal.  The respondent submitted, however, that there was no merit in this new ground.  
3		Both the applicant and the respondent filed detailed written submissions and the applicant’s counsel made further detailed submissions at the hearing.  At the hearing, the respondent spoke briefly in support of his written submissions, upon which he otherwise relied.  For the reasons stated below, I refuse the application for an extension of time.
TRIBUNAL’S DECISION
4		In its reasons for decision, the Tribunal records that the applicant applied to what was then known as the Department of Immigration and Citizenship (Department) for a subclass 880 visa on 7 January 2009.  The delegate decided to refuse to grant him a subclass 880 visa on 18 May 2012.  On 4 June 2012, the applicant applied to the Tribunal for review of the delegate’s decision.
5		The Tribunal affirmed the delegate’s decision on the basis that the applicant did not satisfy cl 880.230(1) of Sch 2 to the Migration Regulations 1994 (Cth) (Migration Regulations) as it stood at the relevant time. Subclause 880.230(1) stated:
A relevant assessing authority has assessed the skills of the applicant as suitable for his or her nominated skilled occupation, and no evidence has become available that the information given or used as part of the assessment of the applicant’s skills is false or misleading in a material particular.
6		“Skilled occupation” was defined by reg 1.15I(1)(a) of the Migration Regulations as “an occupation of a kind … that is specified by the Minister in an instrument in writing to be a skilled occupation”.
7		The Minister specified a list of skilled occupations in Legislative Instrument IMMI 12/068, which was signed on 12 June 2012 (IMMI 12/068).  IMMI 12/068 was expressed to commence on 1 July 2012 and to be applicable to persons who applied before 1 July 2010.  The applicant, who applied on 7 January 2009, accepted that IMMI 12/068 applied to him.
8		IMMI 12/068 specified “for the purposes of paragraph 1.15I(1)(a) of the Regulations, each occupation listed in Schedule 1A to this Instrument to be a skilled occupation that is applicable to the person” (cl 2(i)).  Schedule 1A included “cook”, being the skilled occupation nominated by the applicant in his visa application.
9		‘Relevant assessing authority’ was defined by reg 2.26B, which relevantly read:
Relevant assessing authorities

(1)	Subject to subregulation (1A), the Minister may, by an instrument in writing for this subregulation, specify a person or body as the relevant assessing authority for:

(a)	a skilled occupation; and
(b)	one or more countries;

for the purposes of an application for a skills assessment made by a resident of one of those countries.

(1A)	The Minister must not make an instrument under subregulation (1) unless the 
person or body has been approved in writing as the relevant assessing authority for the occupation by:

(a)	the Education Minister; or
(b)	the Employment Minister.

(2)	The standards against which the skills of a person are assessed by a relevant 
assessing authority for a skilled occupation must be the standards set by the relevant assessing authority for the skilled occupation.
10		Clause 2(iii) of IMMI 12/068 specified, in relation to a person who applied before 1 July 2010, “for the purposes of paragraph 2.26B(1)(a) of the Regulations, the person or body corresponding to each skilled occupation listed in Schedule 1A to this instrument as the relevant assessing authority for that skilled occupation”.  Schedule 1A of IMMI 12/068 listed Trades Recognition Australia (TRA) as the relevant assessing authority for persons whose skilled occupation was nominated as “cook”.  The applicant had previously received a positive assessment from TRA but this had been revoked.  The applicant had not taken steps to have the revocation reviewed or to apply for a new assessment.
11		The Tribunal found that the applicant failed to meet cl 880.230(1) as he could provide no evidence that his skills had been currently assessed as suitable by TRA.  The Tribunal relevantly held:
15.	On the evidence before the Tribunal, the applicant nominated the occupation of Cook which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is Trades Recognition Australia (TRA).

16.	As set out earlier, cl. 880.230(1) relevantly requires that at the time of decision the applicant's skills for the nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation.  The Tribunal finds on the basis of the information set out in the decision record of the delegate that, whilst the applicant cited a TRA skills assessment reference number in his application form, TRA has since advised the Department that this skills assessment has been revoked. Notwithstanding the applicant's oral evidence that this revocation should not have occurred and that his relevant work experience was genuine, his evidence made clear that he has not obtained a new skills assessment or applied to TRA to have its revocation of his previous skills assessment reviewed. He also acknowledged that he had not spoken with TRA or a migration agent about this matter despite, in the Tribunal's view, him having ample time to do so. Moreover, despite allowing further time after the hearing for the applicant to consult an agent and/or provide further submissions, the Tribunal has heard nothing further from the applicant within the agreed timeframe. As such, the Tribunal has proceeded to make a decision on the application on the evidence before it.

17.	The Tribunal finds that there is no evidence before it to show that the applicant's skills have been assessed as suitable for the nominated skilled occupation by the relevant assessing authority. The applicant therefore does not satisfy the requirements of cl. 880.230(1).

	(Emphasis added)
12		Accordingly, on 1 November 2013 the Tribunal affirmed the delegate’s decision.
CIRCUIT COURT’S DECISION
13		By an amended application filed on 5 December 2014, the applicant sought judicial review of the Tribunal’s decision in the Circuit Court.
14		The applicant was represented by counsel at the hearing held on 24 September 2014.  The sole ground of review relied on by the applicant was as follows:
Ground 1

The Tribunal erred in affirming the delegate’s decision on the basis that there was no skills assessment from the Trades Recognition Authority (‘TRA’).

Particulars

…

iii.	The TRA assessed the applicant’s skills and issued a positive skills assessment to him dated 12 June 2007.

…

vi.	By effect of IMMI 068, at the time of the Tribunal’s decision, the TRA had been specified as the relevant assessing authority for the purposes of the applicant’s application for a skills assessment and the TRA’s positive skills assessment was validly made.

vii.	The TRA was not at any relevant time specified under Reg 2.26B as having power to:
a.	revoke a skills assessment; or
b.	withdraw a skills assessment; or
c.	re-assess a person’s skills in the absence of an application for it to do so.

viii.	The TRA acted without power when it purported to revoke, withdraw or re-assess the applicant’s skills assessment.

ix.	In the premises, the TRA’s positive assessment of the applicant’s skills, which was made valid by IMMI 068, has not been revoked, withdrawn or reassessed.

x.	Accordingly, at the time of the Tribunal’s decision the applicant’s skills for the nominated skilled occupation had been assessed by the relevant assessing authority as suitable for that occupation.
15		The Circuit Court judge characterised the main contention on which the applicant’s case turned as that TRA “had ‘power’ to assess his suitability for his nominated skilled occupation, but no ‘power’ to withdraw, revoke or re-make its assessment” (CCJ, [17]).  The Minister submitted that the relevant assessing authority was exercising an administrative function and not a statutory power, and that the authority was given significant latitude in carrying out its functions, which included an ability to “amend, recall, correct, or withdraw its assessments” (CCJ, [19]). The Circuit Court judge accepted the Minister’s submission and relevantly stated:
20.	The Court accepts that the TRA is exercising a function bestowed upon it to make an assessment. This is not the exercise of a statutory power. Rather the assessment is to inform, at the time of decision, the exercise of a statutory power by the migration decision maker. In this case, it was open to the TRA to withdraw its assessment of the Applicant’s suitability prior to the time of decision by the Tribunal. Such revocation of an assessment was a fact Judge O’Dwyer [in Singh v Minister for Immigration [2014] FCCA 347 at [32]] held to be relevant for the Tribunal (in that matter) to take into account, when finding it did not have before it a complying assessment. Here a valid revocation by the assessing authority resulted in the Applicant’s inability to meet the cl. 880.230(1) of the Schedule 2 to the Regulations criterion.
16		Accordingly, on 30 January 2015, the Circuit Court judge dismissed the applicant’s judicial review application with costs.
APPLICATION FOR EXTENSION OF TIME
17		The Federal Court Rules currently provide that an appellant must file a notice of appeal within 21 days after the date of the judgment or orders from which the appeal is brought: see r 36.03.  The applicant did not file a notice of appeal from the judgment of the Circuit Court within this time.  As a consequence, he was obliged to file an extension of time application before he could institute an appeal from that judgment.
18		The applicant filed the extension of time application now before the Court 5 days after the expiration of the 21 day period.  He also filed an affidavit in support of his application deposing that he was unable to file a notice of appeal within time as he was unwell.  This application was accompanied by a draft notice of appeal dated 25 February 2015, which was in substantially the same terms as the judicial review application before the Circuit Court.
19		The applicant subsequently obtained legal representation and filed a further affidavit (affirmed by him on 7 May 2015).  This affidavit stated that he received the appeal court book from the Minister’s lawyers on 4 May 2015, after which he sought legal advice.  The 7 May affidavit exhibited a proposed amended notice of appeal that stated the following ground:
1.	The Federal Circuit Court erred in failing to find that the decision of the Migration Review Tribunal was affected by jurisdictional error, in that:

a.	A claim arose on the materials before the Tribunal that the Tribunal should not accept, or should not act upon, the purported revocation of the positive skills assessment by Trades Recognition Australia.

b.	The basis of the purported revocation of the positive skills assessment was that the work reference supporting the positive skills assessment may not be genuine.

c.	The applicant advanced materials before the Tribunal indicating that the work reference was genuine. Had the Tribunal accepted this material, and acted on this material, it was open to the Tribunal to find that the applicant satisfied the criteria for the grant of the visa.

d.	The combination of paragraphs (b) and (c) gave rise to the claim set out in paragraph (a).

e.	The Tribunal was obliged to consider the claim set out in paragraph (a).

f.	The Tribunal did not consider this claim.

g.	In the premises, the decision of the Tribunal is affected by jurisdictional error.
CONSIDERATION
20		The Court has treated the principles and factors referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Hunter Valley) (in respect of applications for extension of time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth)) as relevant to a decision whether to extend time in which to appeal under r 36.05.  Accordingly, an applicant for an extension of time should satisfy the Court that:
1.	there is an acceptable explanation for the delay;
2.	there would be no undue prejudice to a respondent if the Court were to extend time; 	and
3.	there is sufficient merit in the proposed appeal to justify an extension of time.
See, for example, Vaysman v Deckers Outdoor Corporation Inc (2014) 222 FCR 387, [85] (Besanko J, with whom Siopis J agreed); Mohammed v Minister for Immigration and Border Protection [2015] FCA 184, [15]-[16]; SZRAP v Minister for Immigration and Border Protection [2015] FCA 261, [17]; Mohammad v Minister for Immigration and Border Protection [2014] FCA 1249, [25]; DZAAD v Minister for Immigration and Citizenship [2013] FCA 204 (DZAAD), [28]; SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91, [18]; SZRAP v Minister for Immigration and Border Protection [2015] FCA 261, [17]; Luck v University of Southern Queensland [2011] FCA 1335, [23]; and SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388, [17].
21		The above-mentioned considerations are not, of course, exhaustive and the outcome of an extension of time application will always depend on the particular circumstances of the case: see, for example, Mentink v Minister for Home Affairs [2013] FCAFC 113, [32]-[38] (Griffiths J, with whom Edmonds J agreed).
22		The respondent accepted that the applicant’s delay was not substantial and had been explained to some degree.  The respondent submitted, however, that the proposed grounds were so lacking in merit that there would be no utility in granting an extension of time.  
23		There is no doubt that the merits of a proposed appeal are relevant: compare WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399, [9].  Thus, an extension of time will not be granted if the proposed appeal has no prospects of success, even though the delay is short:  see, for example, DZAAD, [30] and Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211, [14] (Jessup J, with whom Gyles and Besanko JJ agreed).
24		I turn therefore to the merits of the proposed appeal.  In the present case, this consideration is critical to the applicant’s extension of time application.  If the Court forms the view that the prospects of success on the appeal are negligible, then the Court will not grant an extension of time in which to appeal.
25		In support of his application for an extension of time, the applicant relied only on the proposed ground of appeal set out in [19] above, submitting that, for the reason that it disclosed, the Tribunal’s decision was affected by jurisdictional error.  As already indicated, the applicant acknowledged that this proposed ground had not been raised in the Circuit Court and that he would require leave to raise it on his appeal (assuming an extension of time was granted).  Since, as stated below, I would not grant an extension of time on the basis argued, it is unnecessary to explore in detail the question whether such leave should be granted, save to note that the factors relevant to this question overlap to some extent with the factors relevant to an application for an extension of time and merit is also relevant to the question of leave: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158, [48].  If there is insufficient merit to justify an extension of time, there would most likely be insufficient merit to warrant a grant of leave.
26		In support of his proposed ground of appeal, the applicant contended that the Migration Regulations did not confer any power or impose duty on TRA and that:
Nor is it strictly correct to speak of TRA performing a “function” under the [Migration Regulations].  The [Migration Regulations] merely adopt as a factum any “assessment” made by TRA that a person is suitable for the nominated skilled occupation where that assessment complies with r 2.26(2).  That factum is then the subject upon which the [Migration Regulations] operate to create or alter rights, duties and liabilities.

…

All that can be said, at least insofar as is relevant for present purposes, is that the [Migration Regulations] operate to give certain legal consequences to an “assessment” by TRA, when that assessment is in accordance with standards set by TRA.

What flows from this is the observation that there is no particular legal structure governing how TRA makes an “assessment” and when action by TRA will amount to an “assessment” for the purposes of cl 880.230(1).  Thus, in each case where an applicant has claimed that they meet the criteria under cl 880.223(1) by reason of having their skills “assessed” by TRA as suitable for their nominated occupation, it would be a question of fact for the decision maker to determine whether that claim should be accepted.

…

[W]here there is some action by TRA purporting to withdraw or revoke an assessment, it is a question of fact for the decision maker to determine whether that action has the effect that it cannot be said (or perhaps, “can no longer be said”, given that this question arises in relation to a time of decision criterion) that TRA “has assessed” the skills of the applicant as suitable for the nominated skilled occupation … .

(Footnote omitted)
27		Counsel for the applicant expanded on these submissions at the hearing.  Counsel observed, correctly, that before an applicant could succeed in an application for a subclass 880 visa, the decision-maker (relevantly, the Tribunal) had to be satisfied that the relevant assessing authority (here, TRA) “has assessed” the applicant’s skills as suitable for his nominated occupation.
28		The applicant argued that the Tribunal erred in failing to consider his claim that:
[T]he Tribunal should not act on the basis of the information before the delegate that TRA had “revoked” the assessment of 12 June 2007, because in fact, the applicant had performed the 900 hours of work experience and the work reference [supplied with his visa application] was genuine.
29		At the hearing the applicant’s counsel elaborated on the submission that the asserted failure on the Tribunal’s part to consider the applicant’s challenge resulted in jurisdictional error and that this failure might have led to a different outcome.
30		At the hearing, the applicant’s counsel drew the Court’s attention to TRA’s letter of 12 June 2007 (notifying the applicant of its favourable assessment); TRA’s letter of 11 June 2010 (inviting the applicant to respond to TRA’s statement that a prior statement concerning his work experience “may not be genuine”); and TRA’s letter of 25 November 2010 (notifying the applicant that in the absence of a response that it had withdrawn its earlier favourable skills assessment letter of 12 June 2007). 
31		At the hearing, the applicant’s counsel emphasized that, by virtue of cl 880.230(1) the Tribunal was required to determine whether, as a matter of fact, TRA has assessed the applicant’s skills as suitable and that this factual determination depended on the evidence before the Tribunal.  The applicant accepted that it would be open to the Tribunal to find that “the TRA ‘revocation’ was more persuasive evidence as to whether the applicant had been assessed as suitable for his nominated skilled occupation” but argued that, in this case, the Tribunal could not reach this conclusion without first considering the applicant’s claim that TRA’s purported revocation of its favourable assessment should not be taken to have the effect TRA purported to give it.  The applicant asserted that the Tribunal had fallen into error by treating “a statement from TRA as to the current assessment status of the applicant as though it had some legal effect” (emphasis original) rather than something that had “only factual significance, which could only be dispositive after” the Tribunal had considered the applicant’s claims.  At the hearing, the applicant’s counsel reiterated that the TRA-authored documents themselves had no legal consequences.  Rather, it was the decision-maker’s state of satisfaction that was legally significant and this depended not only on TRA’s documents but also on consideration of the applicant’s claims (which, so counsel submitted, asserted that the TRA’s 25 November 2010 letter did not have the effect that TRA thought it had).  
32		In written submissions, the applicant further contended that “if a person has in fact been (historically) assessed as suitable, then they are capable of being found to satisfy the criterion” (emphasis original), adding:
This is not to suggest that events occurring later in time from a positive assessment are irrelevant. Such events can be examined, and as a matter of fact, can be acted upon to determine whether any historical assessment is to be regarded as a (true) assessment for the purpose of cl 880.230(1).

…

To that end, if there is a claim before the decision maker as to why the documents from TRA purporting to withdraw or revoke an earlier positive assessment should not be acted upon, the Tribunal must consider that claim.
33		At the hearing, the applicant argued that there was no valid textual or contextual argument that the words “has assessed” should be understood as referring only to an extant or current assessment.  It was, so the applicant’s counsel said, open to an applicant to produce a document purporting to be an assessment, though dated some time before the Tribunal made its decision, with a view to satisfying the relevant criterion.  Having said this, counsel for the applicant contended that it was not open to the Tribunal to ignore the applicant’s factual challenge to TRA’s withdrawal of its favourable assessment.  This was, so the applicant’s counsel said, an effective challenge to whether or not the purported withdrawal should be accepted.
34		These submissions are misconceived.  Section 29 of the Migration Act 1958 (Cth) (Migration Act) empowers the Minister to grant a non-citizen a visa to remain in Australia.  Section 31 provides for prescribed classes of visas and authorises the making of regulations prescribing criteria for a visa or visas of a specified class.  Pursuant to s 45, a non-citizen who wants a visa must apply for a visa of a particular class.  Section 65 requires that if, after considering a valid application for a visa, the Minister is satisfied that the criteria for the visa prescribed by the Migration Act or Migration Regulations have been satisfied, the Minister is to grant the visa.  If not so satisfied, the Minister is to refuse to grant the visa.  As noted, the applicant applied for a subclass 880 visa, to which cl 880.230(1) of Sch 2 to the Migration Regulations applied: see [5] above.
35		The applicant properly accepted that, in this case, an assessment by TRA has immediate legal consequences for a decision-maker in considering whether or not he or she is satisfied that the relevant assessing authority has assessed the applicant’s skills as suitable for his nominated occupation.  For the purposes of decision-making under cl 880.230(1) of Sch 2 to the Migration Regulations, the existence of an assessment by a relevant assessing authority has immediate legal consequences.  Either the relevant assessing authority has assessed an applicant as suitable, or it has not.  Leaving aside the second limb of cl 880.230(1) (regarding false and misleading information), the decision-maker’s satisfaction as to the existence of a favourable assessment itself determines whether or not the mandated criterion for the grant of the visa has been fulfilled.  
36		As we have seen, however, the applicant challenged what it termed an antecedent step, noting that it is the decision-maker’s satisfaction that is critical here.  It may be accepted that the decision-maker’s satisfaction is key, but it does not follow that the Tribunal’s decision involves jurisdictional error because it did not explore the applicant’s claims that “this [TRA] revocation should not have occurred and that his relevant work experience was genuine”.
37		Under the regulatory scheme (created by cl 880.230(1) and regs 1.15I(1)(a) and 2.26B of the Migration Regulations), the relevant assessing authority is allocated the critical evaluative function with regard to the suitability of the applicant’s skills, presumably to ensure that relevant industry or professional expertise is engaged in assessing whether these skills are in fact suitable for the occupation nominated by the applicant.  The scheme would be seriously compromised if the Tribunal or another decision-maker were to treat a statement by the relevant assessing authority as to whether or not it has assessed an applicant as suitable as open to challenge on the basis that the relevant assessing authority was wrong in its evaluation.  There is nothing in these provisions that would authorise the Tribunal to make such an enquiry.
38		The applicant’s claim before the Tribunal – that TRA should not have revoked his favourable assessment and that his statements about his work experience were genuine – challenged TRA’s withdrawal of its favourable assessment and invited the Tribunal to determine either that the withdrawal or revocation of the prior positive assessment was in error or a favourable assessment should have been made.  The Tribunal was not authorised to enter into enquiries of this kind.  The Tribunal did not, as the applicant asserted, ignore his claims but correctly treated the relevant assessing authority’s statement about the status of the applicant’s assessment as determinative of the narrow question to be addressed under the first limb of cl 880.230(1).  This was whether or not it was satisfied that the relevant assessing authority (i.e. TRA) has assessed the skills of the applicant as suitable for his or her nominated skilled occupation.  
39		It would defeat this regulatory scheme if an assessing authority were unable to withdraw or revoke a favourable assessment of an applicant’s suitability when it formed the view that that positive assessment should not stand.  The capacity to withdraw or revoke such an assessment inheres in the scheme itself.  In so far as the applicant submitted to the contrary, his submission should be rejected.
40		The fact that, at the time the Tribunal made its decision, TRA has not assessed the applicant’s skills as suitable for his nominated skilled occupation was not simply factually significant but was legally determinative of his application because, absent such a favourable assessment, the applicant could not satisfy the Tribunal that he met the mandatory criterion for the grant of a subclass 880 visa.  It cannot be said that the TRA “has assessed” the applicant’s skills as suitable at the relevant time, when at that time a previously favourable assessment had been withdrawn.  
41		It is important to bear in mind that the criteria in cl 880.230(1) are “time of decision” criteria: see heading to cl 880.22; Acts Interpretation Act 1901 (Cth) s 13 and Legislative Instruments Act 2003 (Cth) s 13.  Clause 880.230(1) is therefore to be read as fixing criteria to be met (to the decision-maker’s satisfaction) at the time when the decision comes to be made: compare Singh v Minister for Immigration and Citizenship (2013) 141 ALD 310, 315-316 [32]-[33] and Ugochukwu v Minister for Immigration and Multicultural Affairs [2000] FCA 1602, [7].  For present purposes, the application of the relevant cl 880.230(1) criterion requires that the decision-maker be satisfied that, at the time of the decision, a relevant assessing authority (here, TRA) has assessed the skills of the applicant as suitable for his nominated skilled occupation: compare Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 378 [114] and [116]).  
42		Accordingly, at the time of the decision, the applicant must satisfy the Tribunal or other decision-maker in accordance with cl 880.230(1) that:
o	the assessing authority has assessed the applicant’s skills;
o	as suitable;
o	at the time of decision; and
o	no evidence has become available that the information given or used as part of the assessment of the applicant’s skills is false or misleading in a material particular.
43		An applicant who has been, but at the time of the decision is no longer, assessed as having suitable skills is incapable of satisfying the decision-maker that he or she meets this criterion because it is a “time of decision” criterion.  If the relevant assessing authority has revoked an earlier positive assessment, then an applicant cannot be taken by the decision-maker to have been “assessed … as suitable” for the purpose of cl 880.230(1) at the time the decision is made.  Accordingly, the applicant’s argument in written submissions that the criterion is satisfied as long as an assessing authority at some previous point in time “has assessed” an applicant as suitable, irrespective of the fact that the assessing authority has withdrawn that assessment by the time the decision comes to be made, finds little, if any, textual support and would defeat the object of the regulatory scheme.
44		Further, this latter construction pays insufficient regard to the second limb of cl 880.230(1) (requiring that that no evidence has become available that information given or used as part of an assessment is false or misleading in any material particular).  The second limb confirms that the criteria in cl 880.230(1) are to be met to the decision-maker’s satisfaction at the time of the decision and that the critical inquiry for the decision-maker concerns the status of a relevant assessing authority’s assessment at the time the substantive decision regarding the visa is made.
45		The applicant relied on the decision of Octavia v Minister for Immigration and Citizenship (2011) 245 FLR 345 (Octavia), but Octavia provides little guidance in the present case because the terms of Item 1136(3)(ba) (the criterion at issue in that case) were significantly different and did not import a “time of decision” temporal criterion.  Furthermore, Octavia did not concern the revocation of an assessment by an assessing authority, but addressed a claim that an assessment had expired through lapse of time.
46		The applicant also relied on Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417, particularly [26].  This case also turned on another criterion, which was expressed in different language to that presently under consideration.  Furthermore, the reasoning in that case does not assist in this: amongst other things, in contrast to that case, the construction for which the Minister contends in this case is not productive of plain unfairness and absurdity.  In this case, as already indicated, the applicant’s preferred construction is more productive of practical difficulties than that for which the Minister contends.
47		For the reasons stated, the Tribunal did not therefore fall into jurisdictional error in failing to explore the applicant’s claim that the revocation by TRA should not be determinative and his work experience claim was genuine.  At the time of the decision there was no ‘live’ assessment by the relevant assessing authority that the applicant’s skills were suitable for his nominated occupation.  The Tribunal could not therefore be satisfied that he met the requisite criterion and this lack of satisfaction was fatal to his visa application.  There is therefore no basis for the applicant’s claim that the Circuit Court erred in dismissing the judicial review application that he had instituted in respect of the Tribunal’s decision
48		For the reasons stated, there is insufficient merit in the applicant’s proposed ground of appeal to justify an extension of time (and, if it were relevant, the grant of leave to permit the ground to be agitated on an appeal).  
DISPOSITION
49		The application for an extension of time should be dismissed, with costs.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.	

Associate:

Dated:	18 May 2015