Bussa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

In the High Court, Nettle J considered an application by Mr Bussa for constitutional or other writs. Mr Bussa sought to quash an order of the Federal Court of Australia, which had dismissed his appeal from a judgment of the Federal Circuit Court. The Federal Circuit Court had previously dismissed Mr Bussa's application for judicial review of a decision by the Administrative Appeals Tribunal. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse Mr Bussa a Temporary Graduate visa (subclass 485) in the Graduate Work stream. Mr Bussa's nominated occupation was "Electronics Engineer". The application to the High Court was made without Mr Bussa having applied for special leave to appeal or providing an explanation for departing from the ordinary appellate process, leading to the question of whether the application constituted an abuse of process.

The central legal issues before the Court were whether Mr Bussa's application to the High Court was an abuse of process, and whether the evidence provided by Mr Bussa was relevant to satisfying a primary criterion for the grant of the visa. Specifically, the Court had to determine if the criterion requiring the application to be "accompanied by evidence that the applicant had applied for an assessment of the applicant's skills for the nominated skilled occupation by a relevant assessing authority" was met. This involved considering whether evidence of a skills assessment obtained after the application was lodged, and which had also been failed, could satisfy this requirement.

Nettle J reasoned that the plaintiff's application to the High Court was an abuse of process. His Honour noted that the plaintiff had not followed the ordinary appellate process and had not provided any justification for this departure. Furthermore, the plaintiff had failed to satisfy a mandatory criterion for the visa. The criterion in clause 485.223 of Schedule 2 to the Migration Regulations 1994 required evidence of having applied for a skills assessment to accompany the visa application. The plaintiff had answered "no" to this question on the application form, despite providing a date for a skills assessment. Crucially, the plaintiff had failed this assessment and had not applied for a subsequent assessment before lodging his application. Evidence of a subsequent, also failed, skills assessment obtained after the application was lodged was not relevant to satisfying the criterion as it stood at the time of application.

The application was dismissed, and Mr Bussa was ordered to pay the first defendant's costs of the application to the High Court.