Gaffar v Minister for Immigration & Multicultural Affairs [2000] FCA 293
MIGRATION – visa application – General (Residence) – skills-based visa – requirement to demonstrate “exceptional record of achievement” in the relevant occupation – food hall chef – criteria of excellence out of ordinary – criterion not to be limited by reference to occupation or workplace environment – application allowed.
MOHAMED AZFAR GAFFAR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 34 of 1999
FRENCH J 15 MARCH 2000 PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W34 OF 1999
BETWEEN:
MOHAMED AZFAR GAFFAR Applicant
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:
FRENCH J
DATE OF ORDER:
15 MARCH 2000
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1. The application is allowed.
2.The decision of the Immigration Review Tribunal is set aside and the matter remitted to the Immigration Review Tribunal to be decided according to law.
3. The Respondent is to pay the Applicant’s costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W34 OF 1999
BETWEEN:
MOHAMED AZFAR GAFFAR Applicant
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:
FRENCH J
DATE:
15 MARCH 2000
PLACE:
PERTH
REASONS FOR JUDGMENT
Introduction
A Sri Lankan national who came to Australia on a student visa in 1994 has worked since 1995 as a chef at two Curry Houses in food halls in Perth shopping centres. He had formal qualifications and cooking experience from Sri Lanka before he came to Australia. He evidently impressed his employers here with his level of skill as a cook of Sri Lankan and other Asian foods. In 1997 he applied for a visa to enable him to stay permanently in Australia. The class of visa for which he applied required that he demonstrate “an exceptional record of achievement” in his occupation. In a decision making process that dragged on from August 1997 to May 1999, he was successively refused by a delegate of the Minister, by an internal Departmental Review Officer and, ultimately, by the Immigration Review Tribunal. He now applies for a review of the decision of the Immigration Review Tribunal.
The case raises a question about the proper construction and application of the legal criteria for the grant of the relevant visa.
Factual Background
Mohamed Azfar Gaffar was born on 17 April 1972 in Sri Lanka. After completing secondary schooling in Sri Lanka he undertook studies in the hospitality field, specialising in cooking. In 1993 he was awarded a certificate by the Asia-Lanka International Hotel School for having successfully completed a program of studies in international cookery for the academic years 1991-1993. During that time he also worked at the Republic Holiday Inn. Mr Gaffar came to Australia on a student visa in March 1994. After arriving in Western Australia he undertook a six month English…
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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AGLC
Gaffar v MIMA [2000] FCA 293
Case
[2000] FCA 293
Decision Date
CaseChat Overview and Summary
The case of Gaffar v MIMA involves the applicant, Mohamed Azfar Gaffar, who applied for a Subclass 805 (Skilled) visa to remain permanently in Australia. The respondent, the Minister for Immigration and Multicultural Affairs, refused his application, a decision which was subsequently affirmed by the Migration Internal Review Office and the Immigration Review Tribunal. The primary issue before the court was whether the Tribunal's decision was lawful and whether the applicant was eligible for the visa subclass in question. The court had to consider the criteria for the grant of a Subclass 805 visa and whether the applicant met those criteria based on his qualifications and work experience.
The court found that the Tribunal had not properly considered the applicant's qualifications and work experience in the context of the criteria for the visa subclass. The court held that the Tribunal should have taken into account the applicant's specialised skills in Sri Lankan and Indian cuisines, which were not readily available in Australia, and the positive impact his employment had on the businesses for which he worked. The court also noted that the applicant had a certificate from the Asia-Lanka International Hotel School and had worked as a chef since his arrival in Australia. The court concluded that the Tribunal's decision was flawed and remitted the matter back to the Tribunal for reconsideration in accordance with the law.
The orders of the court were that the application be allowed, the decision of the Immigration Review Tribunal be set aside, and the matter be remitted to the Immigration Review Tribunal to be decided according to law. The respondent was also ordered to pay the applicant's costs of the application.
Orders
Orders of the court
1. The application is allowed.
2. The decision of the Immigration Review Tribunal is set aside and the matter remitted to the Immigration Review Tribunal to be decided according to law.
3. The Respondent is to pay the Applicant’s costs of the application.
Background
Background to the litigation
The case raises a question about the proper construction and application of the legal criteria for the grant of the relevant visa. Factual Background Mohamed Azfar Gaffar was born on 17 April 1972 in Sri Lanka. After completing secondary schooling in Sri Lanka he undertook studies in the hospitality field, specialising in cooking. In 1993 he was awarded a certificate by the Asia-Lanka International Hotel School for having successfully completed a program of studies in international cookery for the academic years 1991-1993. During that time he also worked at the Republic Holiday Inn. Mr Gaffar came to Australia on a student visa in March 1994. After arriving in Western Australia he undertook a six month English language course at a TAFE College. In December 1994 he applied for and was granted a Subclass 435 Sri Lankan visa. This visa was extended more than once up until its most recent expiry date on 31 July 1997. The provision of the Migration Regulations creating the Subclass 435 Sri Lankan visa was repealed in 1998 by SR 104 of 1998, reg 23. On 6 August 1997, Mr Gaffar lodged an application to remain permanently in Australia. He applied under the class of visa designated “General (Residence)”. He sought a visa of that class under the subclass “skilled”. Since 1995 until the present time Mr Gaffar has worked as a chef. His first employer was a Mrs Che who operated the Governor’s Curry House at the Whitfords Shopping Centre. In May 1996 the business was purchased by a Ms Wensinger. At the time of the purchase Mr Gaffar was employed as a specialist chef cooking Sri Lankan and Indian cuisines. He was later employed by Mrs Che in her new business, also known as the Governor’s Curry House, at the Galleria Shopping Centre in Morley. On 12 August 1998, more than a year after Mr Gaffar had lodged his application to remain permanently in Australia, a decision was made to refuse it because he did not meet the requirements for the class of visa for which he had applied. He sought review by the Migration Internal Review Office, but on 27 October 1998 the office affirmed the decision for the same reasons as the primary decision maker. On 23 November 1998, Mr Gaffar filed an application for review of the decision by the Immigration Review Tribunal. The Tribunal refused his application and affirmed the decision under review that he was not entitled to the grant of a Subclass 805 (Skilled) visa. Evidence was heard from Mrs Che who had been the owner of the Governor’s Curry House at Whitfords City Shopping Centre when Mr Gaffar was first employed there. Mr Gaffar was employed in that business for two years. According to Mrs Che, after Mr Gaffar started working for her the business improved so much as a direct result of his cooking that she sold it and acquired a new business under the same name at the Galleria Shopping Centre in Morley. She sold the Whitfords’ business in May 1996 to Luchie Wensinger who kept Mr Gaffar on as a specialist chef, cooking Sri Lankan and Indian cuisines. She also made a statement which was before the Tribunal that Mr Gaffar’s cooking gained a reputation in the Whitfords area and that his skills contributed to the success of the business and the creation of employment for staff in the business. Ms Wensinger said: “As a business owner it is very difficult to employ local residents with the skills of Sri Lanka and North Indian Cooking, particularly highly skilled people such as Mr Gaffar. These skills are not available in Australia, people like Mr Gaffar should be looked after to teach and train others and pass on the knowledge and knowhow etc.”