Bhanot v Minister for Immigration - [2014] FCCA 864

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHANOT v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 864

Catchwords:
MIGRATION – Review by Migration Review Tribunal of decision refusing applicant Skilled (Residence) (Class VB) visa – whether Tribunal made a jurisdictional error by concluding applicant was not employed in a skilled occupation closely related to applicant’s nominated skilled occupation –meaning of “closely related” – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5(9), 92, 93, 94(3), 95, 96(1), 96(2), 350(1)
Migration Regulations 1994 (Cth), regs.1.03, 2.26AA(1), 2.26AA(3)
Schedule 1, item 1136

Schedule 2, cl.885.211(2)(a), 885.211(2)(b), 885.221

Schedule 6B, item 6B41
Migration Regulations 1994 (Cth) Legislative Instrument IMMI 12/068 – Specification of Skilled Occupations, Relevant Assessing Authorities, Countries and Points for General Skilled Migration Visas and Certain Other Visas

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
Constantino v Minister for Immigration and Border Protection [2013] FCA 1301
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Singh and Anor v Immigration Review Tribunal and Anor (1993) 117 ALR 687

Applicant:

VARUN KUMAR BHANOT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 406 of 2013

Judgment of:

Judge Manousaridis

Hearing date:

18 December 2013

Delivered at:

Sydney

Delivered on:

29 April 2014

REPRESENTATION

Solicitors for the Applicant:

Mr Newman

Counsel for the Respondents:

Mr Reilly

Solicitors for the Respondents:

DLA Piper

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 406 of 2013

VARUN KUMAR BHANOT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The principal issue that arises in this application for judicial review is whether the second respondent (Tribunal) misinterpreted or misapplied to the facts before it the expression “has been employed in . . . a closely related skilled occupation” when assessing whether the applicant had satisfied the criteria for a Skilled (Residence) (Class VB) visa (Skilled Visa).
To understand the grounds on which the applicant contends the Tribunal misinterpreted or misapplied this expression, it will be necessary to say something about the criteria that had to be satisfied for the granting of a Skilled Visa on 20 September 2010 when the applicant applied for the Skilled Visa, and the facts out of which the claim arises.

Skilled Visas

Skilled Visas are a class of visas prescribed by Item 1136 of Schedule 1 to the Migration Regulations 1994 (Cth) (Regulations). To have been entitled to a Skilled Visa on 20 September 2010, an applicant had to satisfy the criteria specified under Subclass 885 or Subclass 886 or Subclass 887 of Schedule 2 to the Regulations. The relevant criteria the applicant before me had to satisfy were those identified under Subclass 885.
One of those criteria was that the applicant satisfied…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FCCA 864
Decision Date: 29 April 2014

CaseChat Overview and Summary

The applicant, Mr Bhanot, sought judicial review of a decision by the Migration Review Tribunal (MRT) which affirmed the refusal of his application for a Skilled (Residence) (Class VB) visa. The core of the dispute concerned whether the applicant's employment was in a skilled occupation that was "closely related" to his nominated skilled occupation, a requirement for the visa. The matter came before Judge Manousaridis in the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the MRT had made a jurisdictional error in its interpretation and application of the phrase "closely related" as it applied to the applicant's nominated occupation and his actual employment. Specifically, the Court had to determine the correct meaning of this phrase within the context of the relevant migration legislation and regulations.

Judge Manousaridis reasoned that the MRT had not erred in its interpretation of "closely related." The Tribunal had correctly considered the nature of the applicant's nominated occupation and his actual employment, applying a reasonable and legally sound approach to determining whether they were sufficiently connected. The Court found that the MRT's conclusion that the applicant's employment was not closely related to his nominated occupation was a finding of fact open to the Tribunal, and therefore did not constitute a jurisdictional error.

Consequently, the application for judicial review was dismissed.

Orders