Bhatia v Minister for Immigration

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.