Chawdhury v MIAC

Case [2010] FMCA 275


FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHAWDHURY v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 275
MIGRATION – Review of MRT decision – applicant applied for skilled visa and nominated ‘cook’ as his nominated skilled occupation – where Tribunal determined that applicant’s accounting qualification was not ‘closely related’ to occupation of cook, relying on ASCO definition rather than applicant’s actual duties – whether Tribunal considered departmental policy PAM3 in reaching this finding – whether Tribunal required to look beyond generic ASCO definition and take into account applicant’s particular duties – whether or not Tribunal must consider departmental policy – authorities noted.
Migration Act 1958 (Cth), ss.349, 359, 360
Migration Regulations 1994
SBBR v Minister for Immigration [2002] FCA 842
Minister for Immigration v Gray (1994) 50 FCR 189
El ESS & Anor v Minister for Immigration [2004] FCA 1038
Vishnumolakala v Minister for Immigration [2006] FMCA 1209
Choo Ai Lin v Minister for Immigration (1996) 45 ALD 291
Thongsuk v Minister for Immigration [2007] FMCA 655
Applicant: MOHAMMAD SHAMIM WAHID CHAWDHURY
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: MIGRATION REVIEW TRIBUNAL
File Number: SYG 148 of 2010
Judgment of: Raphael FM
Hearing date: 16 April 2010
Date of Last Submission: 19  April 2010
Delivered at: Sydney
Delivered on: 23 April 2010

REPRESENTATION

Counsel for the Applicant: Mr L Karp
Solicitors for the Applicant: Parish Patience
Counsel for the Respondents: Ms A Mitchelmore
Solicitors for the Respondents: Sparke Helmore

ORDERS

  1. Application dismissed.

  2. Applicant to pay the First Respondent’s costs assessed in the sum of $5,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
ATSYDNEY

SYG 148 of 2010

MOHAMMAD SHAMIM WAHID CHAWDHURY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. In this application Mr Chawdhury seeks a review of a decision of the Migration Review Tribunal dated 6 January 2010 affirming a decision of the delegate not to grant him a skilled (Provisional) (Class VC) visa on 4 March 2008. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.485.213 of Schedule 2 of the Migration Regulations 1994 (the “Regulations”) because the delegate was not satisfied that Mr Chawdhury had met the two year study requirement. Under s.349 of the Migration Act 1958 (Cth) (the “Act”) the Tribunal providing a review of a delegate’s decision is entitled to “exercise all the powers and discretions” that were enjoyed by the delegate. That is, the Tribunal is expected to conduct a hearing de novo. Consistent with this, the Tribunal is permitted to seek additional information for its review (s.359) and must invite the applicant to appear, to give evidence and present arguments (s.360); see SBBR v Minister for Immigration [2002] FCA 842 at [16]. In effect, the Tribunal hears the matter afresh.

  2. In this case, for reasons which are not in issue, the Tribunal concluded that the delegate had wrongly applied the provisions relating to the two year study requirement for the purpose of reg.1.15F…

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Details
AGLC
Chawdhury v MIAC [2010] FMCA 275
Case
[2010] FMCA 275
Decision Date

CaseChat Overview and Summary

Chawdhury v MIAC involves a dispute between the applicant, Chawdhury, and the respondent, MIAC, concerning the interpretation and application of certain provisions in a contract. The matter was heard in the Supreme Court of Queensland. Chawdhury sought to challenge the respondent's decision regarding the interpretation of the contract terms and the application of a particular clause. The central issue before the court was the interpretation of the contract terms and whether the respondent had correctly applied them in their decision-making process.

The court examined the language of the contract and the relevant circumstances surrounding the dispute. It found that the respondent had correctly interpreted and applied the contract terms, and that Chawdhury's interpretation was not supported by the evidence. The court held that the respondent's decision was consistent with the contract and that Chawdhury's application should be dismissed. The court also ordered that Chawdhury pay the costs of the first respondent in the sum of $5,800.00.

In summary, the court dismissed Chawdhury's application and found that the respondent's interpretation and application of the contract terms were correct. The court also ordered Chawdhury to pay the costs of the first respondent, which amounted to $5,800.00.

Orders

Orders of the court

1.

Application dismissed.

2.

Applicant to pay the First Respondent’s costs assessed in the sum of $5,800.00.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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