Islam v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ISLAM v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 379

MIGRATION – Review of Migration Review Tribunal decision – refusal of a skilled residence visa – Tribunal finding the applicant lacked sufficient academic training to be a cook and that his work experience record at the time of acceptance of his trade qualifications was false or misleading – no reviewable error found – application dismissed – observations on the interpretation and application of the applicable visa criteria.

Migration Act 1958 (Cth), ss.351, 359A
Migration Regulations 1994 (Cth)

Talukder v Minister for Immigration [2009] FCA 916

Applicant: MD MONIRUL ISLAM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 543 of 2010

Judgment of: Driver FM

Hearing date: 1 June 2010

Delivered at: Sydney

Delivered on: 21 June 2010

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Ms A Mitchelmore

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 543 of 2010

MD MONIRUL ISLAM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”).  The decision was made on 17 February 2010.  The Tribunal affirmed a decision of a delegate of the Minister not to grant Mr Islam a Skilled – Independent Overseas Student (Residence) (Class DD) visa. 

2. The following statement of background facts is derived from the Minister’s submissions filed on 17 May 2010. 

3. Mr Islam is a citizen of Bangladesh. On 18 December 2006, he applied for a Skilled – Independent Overseas Student visa, which is a permanent visa for eligible overseas students who have been studying in Australia and have recently completed an Australian degree, diploma or trade qualification. There is only one subclass for this class of visa, namely Subclass 880: see clause 1128CA(4) of Sch 1 to the Migration Regulations1994 (Cth) (“the Regulations”).

4. The time of application criteria and the time of decision criteria for subclass 880 are set out in paragraphs [7] and [8] of the Tribunal’s decision. Relevantly, clause 880.215 of Schedule 2, which is a time of application criterion, provides:

   The Minister is satisfied that each of the degrees, diplomas or trade qualifications mentioned in subparagraph 1228CA(3)(l)(i) or (ii) of Schedule 1 is relevant to the skilled occupation nominated by the applicant in his or her application.

5. Clause 880.230(1), which is a time of decision criterion, provides:

   A relevant assessing authority has assessed the skills of the applicant as suitable for his or her nominated skilled occupation, and no evidence has become available that the information given or used as part of the assessment of the applicant’s skills is false or misleading in a material particular.

6. For the purposes of clause 880.215, Mr Islam relied on two educational qualifications. The first qualification was an AQF Certificate III in Hospitality – Commercial Cookery, which…