Constantino v MIBP

Case [2013] FCA 1301


FEDERAL COURT OF AUSTRALIA

Constantino v Minister for Immigration and Border Protection [2013] FCA 1301

Citation: Constantino v Minister for Immigration and Border Protection [2013] FCA 1301
Appeal from: Constantino v Minister for Immigration & Anor [2013] FCCA 1178
Parties: 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
Cases cited: Dhiman v Minister for Immigration & Citizenship [2012] FCA 1254
Manik v Minister for Immigration and Citizenship (2012) 128 ALD 539
Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381
Prasad v Minister for Immigration and Citizenship (2012) 128 ALD 113
Uddin v Minister for Immigration & Citizenship [2010] FCA 1281
Vetter v Lake Macquarie City Council (2001) 202 CLR 439
Williams v The Mayor, Alderman, Councillors and Citizens of the City of Melbourne (1933) 49 CLR 142
Date of hearing: 29 November 2013
Date of last submissions: 29 November 2013
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 53
Counsel for the Appellant: Mr L Karp
Counsel for the First Respondent: Mr T Reilly
Solicitor for First Respondent: Sparke Helmore
Counsel for the Second Respondent: The Second Respondent submitted save as to costs

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 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…

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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

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Evidence

Evidence Before The Court

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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.

Ratio Decidendi

Legal Principle Established

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