Bhatia v Minister for Immigration - [2015] FCCA 409

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHATIA v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 409

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of a skilled residence visa – points test – whether the Tribunal erred in disregarding unpaid employment and paid employment in excess of 20 hours per week considered – whether the Tribunal erred in treating unpaid work undertaken for the purposes of a skills assessment as work which is usually remunerated considered – jurisdictional error established.

WORDS AND PHRASES – “Work”, “employed”.

Legislation:

Migration Regulations 1994 (Cth)

Tikoisuva v Minister for Immigration [2001] FCA 1347
Xu v Minister for Immigration & Anor [2007] FMCA 285

Applicant:

DINESH BHATIA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1159 of 2014

Judgment of:

Judge Driver

Hearing date:

25 February 2015

Delivered at:

Sydney

Delivered on:

20 March 2015

REPRESENTATION

Counsel for the Applicant:

Mr J R Young

Solicitors for the Applicant:

Shamser Thapa & Associates

Counsel for the Respondents:

Mr M J Smith

Solicitors for the Respondents:

DLA Piper

ORDERS

A writ of certiorari shall issue removing the record of the decision of the Migration Review Tribunal made on 10 April 2014 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Migration Review Tribunal to redetermine the review application before it according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1159 of 2014

DINESH BHATIA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Migration Review Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Mr Bhatia, a skilled residence visa.
Mr Bhatia applied for the visa on 8 March 2011. In order to be granted the visa that was sought, it was necessary that Mr Bhatia met the requirements of clause 885.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which required Mr Bhatia to achieve a score of 120 points when assessed against Schedule 6B to the Regulations. On 27 September 2013, the Minister’s delegate refused to grant Mr Bhatia the visa, having concluded that he achieved a score of 110 points only[1].
[1] Court Book (CB) 68
Mr Bhatia sought review of the delegate’s decision. It was plain at the hearing before the Tribunal that the central issue was the allocation of points for the purposes of the required points assessment. On 10 April 2014 the Tribunal affirmed the delegate’s decision[2] on the basis that Mr Bhatia achieved a score of only 110 points.
[2] CB 184-194
It followed that the outcome before the Tribunal was the same as before the Minister’s delegate.
The issue for resolution in these proceedings is the correctness of the Tribunal’s conclusion that Mr Bhatia was not entitled to any points under Part 6B.4 and Part 6B.5…

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: [2015] FCCA 409
Decision Date: 20 March 2015

CaseChat Overview and Summary

The applicant, Mr. Bhatia, sought judicial review of a decision by the Migration Review Tribunal (MRT) which affirmed the refusal of his application for a skilled residence visa. The core of the dispute concerned the MRT's assessment of Mr. Bhatia's work experience, specifically whether certain periods of employment, both paid and unpaid, should have been counted towards the points required for his visa application under the relevant migration regulations.

The primary legal issues before the court were whether the MRT had erred in law by: (1) disregarding paid employment that exceeded 20 hours per week, and (2) treating unpaid work undertaken for the purposes of a skills assessment as work that is usually remunerated. These questions turned on the proper interpretation of the terms "work" and "employed" within the context of the migration legislation and the specific visa subclass requirements.

Justice Driver found that the MRT had indeed made a jurisdictional error. The Tribunal's interpretation of the regulations, which led it to disregard paid employment exceeding 20 hours per week, was found to be overly restrictive and not supported by the plain language of the legislative instrument. Furthermore, the MRT's approach to unpaid work undertaken for a skills assessment was also deemed erroneous. The Tribunal had incorrectly concluded that such work could not be considered "work which is usually remunerated" simply because it was unpaid in that specific instance, failing to consider the nature of the work itself and whether it typically attracted remuneration in other contexts.

The court concluded that the MRT's errors constituted jurisdictional error, and accordingly, the decision of the MRT was quashed.

Orders