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.
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
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.
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…
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
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.