Luthra v Minister for Immigration and Citizenship [2009] FCA 575

FEDERAL COURT OF AUSTRALIA

Luthra v Minister for Immigration and Citizenship [2009] FCA 575

NALISHA LUTHRA, RAKESH LUTHRA and TASHNA LUTHRA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL

NSD 252 of 2009

SIOPIS J

29 MAY 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 252 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NALISHA LUTHRA

First Appellant

RAKESH LUTHRA

Second Appellant

TASHNA LUTHRA

Third Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGE: SIOPIS J

DATE OF ORDER: 29 MAY 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed. 2. The appellants are to pay the first respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 252 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NALISHA LUTHRA

First Appellant

RAKESH LUTHRA

Second Appellant

TASHNA LUTHRA

Third Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGE: SIOPIS J

DATE: 29 MAY 2009

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellants are citizens of India. The first appellant is the primary visa applicant. The second appellant is her husband and the third appellant is their daughter. 2 On 1 May 2000, in anticipation of making an application for a Subclass 136 Skilled – Independent visa, the first appellant applied to CPA Australia for an assessment of whether her skills were suitable for her occupation as an accountant. In support of her application to CPA Australia, the first appellant stated that she had a Bachelor of Commerce (Pass) from Delhi University completed in 1994 and a Master of Commerce from Delhi University completed in 1996. The first appellant forwarded to CPA Australia copies of her degree certificates and statement of marks from Delhi University for each of the degrees. The degree certificate and statement of marks for the Master of Commerce referred to the first appellant's roll number as: 26712. 3 By a letter dated 26 September 2000, CPA Australia advised the first appellant that: Your Bachelor and Master of Commerce from the University of Delhi is assessed as comparable to Australian tertiary qualifications. Thus, you have satisfied the CPA Australia's first academic requirement for membership. In order to fulfil the Minimum Core of Knowledge requirements for admission as an Associate member, you will need to successfully complete additional studies in the following subject areas: • Australian Taxation Law; • Australian Company Law. 4 On 11 December 2000, the first appellant applied for a Subclass 136 Skilled – Independent visa and forwarded to the Department, CPA Australia's letter dated 26 September 2000 and supporting materials. On 26 August 2002, in the process of assessing the first appellant's visa application, the Department received a letter dated 14 August 2002 from the Assistant Controller of Examinations, University of Delhi, which verified the first appellant's Bachelor of Commerce degree but stated that there was no record of the first appellant having passed a Master of Commerce examination as claimed and that the photocopy of her degree and marks sheet for that degree supplied to the Department for verification were "fake" and had not been issued by the University of Delhi. 5 On 7 May 2003, the first appellant withdrew her Subclass 136 visa application before a decision was made in respect of that application. 6 However, on 13 May 2003, the appellants lodged another visa application. This was for a Skilled ‑ Independent Overseas Student (Residence) (Class DD) visa. This class of visa contains one Subclass: Subclass 880 (Skilled – Independent Overseas Student). In the visa application, the first appellant nominated "accountant" as her occupation. 7 For the appellants to make a valid visa application, it was necessary for the first appellant to comply with Item 1128CA(3)(k) of Sch 1 to the Migration Regulations 1994 (Cth) (the Regulations) which provided that: Application by an applicant seeking to satisfy the primary criteria must be accompanied by satisfactory evidence that a relevant assessing authority has assessed the skills of the applicant as suitable for his or her nominated skilled occupation. 8 The Regulations provided that the assessing authority for the occupation of an accountant is CPA Australia. In support of her Subclass 880 visa application, the first appellant provided to the Department the CPA Australia assessment dated 26 September 2000 which she had previously submitted in support of her application for a Subclass 136 visa. 9 A delegate of the first respondent refused the appellants' visa application on 10 February 2004. 10 On 10 March 2004, the appellants applied to the Migration Review Tribunal (the Tribunal) for a review of that decision. The decision of the Tribunal was set aside by consent and remitted to a differently constituted Tribunal to conduct the review of the delegate's decision.