Josan v Minister for Immigration and Border Protection

The appellant, Mr Josan, appealed the decision of the Full Court of the Federal Court of Australia (Full Court) to dismiss his application for judicial review of a decision of the Migration Review Tribunal (MRT). The decision of the MRT had dismissed Mr Josan’s review of a decision by a delegate of the Minister for Immigration and Border Protection to refuse to grant him a Skilled (Residence) (Class VB) Subclass 886 (Skilled-Sponsored) Visa. The delegate had refused the application on the basis that he did not accept that Mr Josan had been employed for 900 hours at O’Heas Bakery and that the skills assessment provided by Mr Josan was a “bogus document”.

The legal issues in the appeal were whether the Tribunal had breached sections 359A and 362A of the Migration Act 1958 (Cth) and whether the Full Court had erred in dismissing the appeal. The appellant also sought leave to cross-appeal the decision of the Full Court. The appellant argued that the Tribunal had not afforded him procedural fairness by not allowing him to respond to certain information that the Tribunal considered would be the reason, or a part of the reason for affirming the decision under review. The appellant further argued that the Full Court had erred in dismissing the appeal and that the Tribunal’s breach of procedural fairness and its conclusion that he had given it a “bogus document” infected the exercise of discretion in relation to the question of “closely related” course of study and nominated occupation.

The court held that the appellant’s grounds of appeal were not intelligible and appeared to be misconceived. The court found that the issue of the expiry of the three-year exclusionary period only became relevant in the context of the Full Court’s consideration of the utility of granting declaratory relief. The court accepted the Minister’s submission that the three-year period ran from the date of the decision of the delegate, but concluded that the appellant was entitled to declaratory relief nonetheless. The court held that the appellant’s submissions relating to the impact of the Full Court decision in Singh were not accepted.

The appeal was dismissed, and the time within which to file the cross-appeal was extended. The cross-appeal was also dismissed. There was no order as to costs, subject to an application to set aside or vary the order being made within five days.