Chalise v Minister for Immigration - [2016] FCCA 1358

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHALISE & ORS v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1358

Catchwords:
MIGRATION – Review of former Migration Review Tribunal decision – refusal of permanent skilled visas – application of the points test – overseas employment experience not accepted – whether the Tribunal misconstrued the meaning of a “closely related skilled occupation” considered – no jurisdictional error.

WORDS AND PHRASES – Nominated Skilled Occupation – Closely Related Skilled Occupation.

Legislation:

Migration Act 1958 (Cth), ss.93, 94

Migration Regulations 1994 (Cth)

Bhanot v Minister for Immigration [2014] FCA 848; (2014) 223 FCR 454

Bhanot v Minister for Immigration & Anor [2014] FCCA 864

Biyiksiz v Minister for Immigration [2004] FCA 814

Constantino v Minister for Immigration (2013) 139 ALD 567

Deputy Commissioner of Taxation v Mutton (1988) 90 FLR 454

El Ess v Minister for Immigration (2004) 142 FCR 43

Jaravaza v Minister for Immigration (2013) 276 FLR 32

Qantas v Chief Commissioner of State Revenue [2008] NSWSC 1049

Xue Fan v Minister for Immigration (2010) 240 CLR 318

First Applicant:

NIRMAL CHALISE

Second Applicant:

CHANDRA KALA LAMSAL

Third Applicant:

NIRMAAD CHALISE

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 28 of 2015

Judgment of:

Judge Driver

Hearing date:

3 June 2016

Delivered at:

Sydney

Delivered on:

1 August 2016

REPRESENTATION

Solicitors for the Applicant:

Mr C Guan of Paul Guan & Associates

Counsel for the Respondents:

Mr M Cleary

Solicitors for the Respondents:

Ms N Blake of Clayton Utz

ORDERS

The application as amended on 17 May 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 28 of 2015

NIRMAL CHALISE

First Applicant

CHANDRA KALA LAMSAL

Second Applicant

NIRMAAD CHALISE

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 19 December 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants Skilled Independent (Permanent) visas.
The following statement of background facts is derived from the submissions of the parties.
On 24 March 2014 the first applicant, Mr Chalise, was invited to apply for a skilled visa to work in Australia as an electronics engineer. In order to obtain a skilled visa Mr Chalise had to meet the points required as set out in clause 189.214 of Schedule 2 to the Migration Regulations 1994 (Cth) (Migration Regulations). Under clause 189.214 Mr Chalise needed 60 points to satisfy the pass mark.
The delegate, and subsequently the Tribunal, found that Mr Chalise was only entitled to 55 points and refused to grant points in the “Overseas Employment Experience” category. This was on the basis that Mr Chalise’s employment as a teaching assistant and electronics lab-in-charge from 21 May 2009 to 25 November 2012 was neither his “nominated skilled occupation” nor in…

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: [2016] FCCA 1358
Decision Date: 1 August 2016

CaseChat Overview and Summary

This matter concerned an application for judicial review of a decision by the Migration Review Tribunal (MRT) which affirmed the refusal of the applicant's applications for permanent skilled visas. The core of the dispute revolved around the applicant's overseas employment experience, which had not been accepted by the Department of Immigration and Border Protection, and subsequently by the MRT, in the context of the applicable points test. The applicant contended that the MRT had misconstrued the meaning of a "closely related skilled occupation" when assessing their eligibility. The case was heard in the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the MRT had committed jurisdictional error in its interpretation and application of the relevant migration regulations, specifically concerning the assessment of overseas employment experience and the definition of a "closely related skilled occupation" for the purposes of the points test. The applicant argued that the Tribunal's interpretation of this phrase was unduly narrow and did not accord with the legislative intent.

Judge Driver found that the MRT had not misconstrued the meaning of "closely related skilled occupation." The Court reasoned that the Tribunal's interpretation was open to it on the proper construction of the Migration Regulations and the relevant policy guidelines. The Tribunal had applied the correct legal test and had not made an error of law in its assessment of the applicant's qualifications and experience. Consequently, there was no jurisdictional error established.

The application for judicial review was dismissed.

Orders