MYRA FLORES CONSTANTINO v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL
File number:
NSD 1899 of 2013
Judge:
JACOBSON J
Date of judgment:
4 December 2013
Catchwords:
MIGRATION – appeal from Federal Circuit Court dismissing appeal from Migration Review Tribunal decision – whether appellant’s diploma “closely related” to the nominated skilled occupation as required by cl 485.213(b) of the Migration Regulations 1994 (Cth) – proper construction of the phrase “closely related” – relationship between the course of study and the nominated occupation must be more than complementary – no appealable error in the orders of the Federal Circuit Court – appeal dismissed
Legislation:
Migration Act 1958 (Cth) s 65 Migration Regulations 1994 (Cth) regs 1.15F(1), 1.15I(1); Sch 1, cl 1229; Sch 2, cll 485.21, 485.213, 485.214, 485.221 Migration Regulations 1994 (Cth) Legislative Instrument IMMI 12/068 Specification of Skilled Occupations, Relevant Assessing Authorities, Countries and Points for General Skilled Migration Visas and Certain Other Visas
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN:
MYRA FLORES CONSTANTINO Appellant
AND:
MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent
MIGRATION REVIEW TRIBUNAL Second Respondent
JUDGE:
JACOBSON J
DATE OF ORDER:
4 DECEMBER 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Border Protection”.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs of the appeal.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1899 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN:
MYRA FLORES CONSTANTINO Appellant
AND:
MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent
MIGRATION REVIEW TRIBUNAL Second Respondent
JUDGE:
JACOBSON J
DATE:
4 DECEMBER…
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
Constantino v Minister for Immigration and Border Protection [2013] FCA 1301
Case
[2013] FCA 1301
Decision Date
CaseChat Overview and Summary
The appeal in the Federal Circuit Court against the Migration Review Tribunal's decision was brought by the appellant, seeking to challenge the Tribunal's ruling on whether his diploma was "closely related" to his nominated skilled occupation as required by clause 485.213(b) of the Migration Regulations 1994 (Cth). The court was required to determine the proper interpretation of the phrase "closely related" in the context of the appellant's course of study and the nominated occupation, as well as whether the Tribunal had made any errors in its assessment that could justify an appeal. The appellant argued that his diploma should be considered closely related to his nominated occupation, despite the Tribunal's contrary finding.
The court examined the phrase "closely related" and found that it required a closer relationship between the course of study and the nominated occupation than merely being complementary. The court also considered the Tribunal's reasoning and concluded that there was no appealable error in its orders. The court found that the Tribunal had correctly applied the law and that the appellant's diploma did not meet the threshold of being closely related to his nominated occupation. The court held that the Tribunal's decision was not in error and that the appellant's argument did not present any grounds for appeal.
The court dismissed the appeal, finding no error in the Tribunal's decision or in the subsequent orders of the Federal Circuit Court. The court acknowledged the potential for some degree of injustice in the outcome, given the previous approach taken by the Department, but held that there was no basis to overturn the Tribunal's ruling. The court ordered that the name of the first respondent be amended to "Minister for Immigration and Border Protection" and that the appeal be dismissed with costs to the first respondent. The appellant was also required to pay the first respondent's costs of the appeal, in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The name of the first respondent be amended to “Minister for Immigration and Border Protection”.
2. The appeal be dismissed.
3. The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
This was a finding that the Tribunal had not fallen into jurisdictional error. I see no error on the part of the judge in making that finding.Conclusion and orders As I said above, there may be some degree of injustice in this matter because on the approach adopted by the Department prior to the decision in Uddin, the appellant may have been able to satisfy the less stringent test which was previously accepted by the Department. The appellant’s course of study seems to have commenced before the decision in Uddin. Nevertheless, for the reasons stated above, there is no appealable error in the orders of the Federal Circuit Court. The appeal must therefore be dismissed with costs.