Constantino v Minister for Immigration - [2013] FCCA 1178

FEDERAL CIRCUIT COURT OF AUSTRALIA

CONSTANTINO v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1178

Catchwords:
MIGRATION – Skilled visa – review of Migration Review Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it misconstrued cl.485.213(b) of sch.2 to the Migration Regulations 1994.

Legislation:

Migration Act 1958, s.474

Migration Regulations 1994, regs.1.15F, 1.15I, cl.485.213 of sch.2
Instrument number IMMI 12/068 “Skilled Occupations, Relevant Assessing Authorities, Countries and Points for General Skilled Migration Visas and Certain Other Visas”, legislative instrument F2012L01314

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant:

MYRA FLORES CONSTANTINO

First Respondent:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1946 of 2012

Judgment of:

Judge Cameron

Hearing date:

19 August 2013

Date of Last Submission:

19 August 2013

Delivered at:

Sydney

Delivered on:

23 August 2013

REPRESENTATION

Counsel for the Applicant:

Mr L. Karp

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1946 of 2012

MYRA FLORES CONSTANTINO

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, who is a citizen of the Philippines, applied for a Skilled (Residence) (Class VC) subclass 485 visa on 28 January 2010. On 18 October 2011 her application was refused by a delegate of the first respondent (“Minister”) on the basis that she did not satisfy the requirements of cl.485.213 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.

Relevant legislation

The criteria for the grant of a subclass 485 visa are set out in pt.485 of sch.2 to the Regulations. One of the criteria which the applicant had to satisfy at the time she lodged her application was cl.485.213 which provided:
(a)the applicant satisfied the Australian study requirement in the period of 6 months ending immediately before the day on which the application was made;
(b)each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation. (emphasis added)
“Australian study requirement” has the meaning given to it by reg.1.15F which relevantly provides:
1.15F Australian study requirement
(1)A person satisfies the Australian study requirement if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational…

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: [2013] FCCA 1178
Decision Date: 23 August 2013

CaseChat Overview and Summary

Constantino (the applicant) sought judicial review of a decision made by the Migration Review Tribunal (the Tribunal). The dispute concerned the applicant's eligibility for a skilled visa, specifically whether the Tribunal had erred in its interpretation of the Migration Regulations 1994.

The central legal issue before the court was whether the Tribunal had committed a jurisdictional error by misconstruing clause 485.213(b) of Schedule 2 to the Migration Regulations 1994. This clause relates to the requirements for a skilled visa.

Judge Cameron found that the Tribunal had indeed misconstrued clause 485.213(b). The Tribunal's interpretation of the clause was found to be overly restrictive and not in accordance with the plain meaning of the regulation. The court applied principles of statutory interpretation, emphasizing the importance of giving effect to the ordinary meaning of the words used in the legislation. The court concluded that the Tribunal's error was one of jurisdictional error.

Orders