Kabir v MIAC

Case [2010] FMCA 577

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KABIR v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 577
MIGRATION – Visa – Skilled (Provisional) (Class VC) visa – review of decision of Migration Review Tribunal – where applicant applied for skilled visa and nominated ‘cook’ as his nominated skilled occupation – where Tribunal determined that applicant’s accounting qualification was not “closely related” to occupation of cook, relying on ASCO definition rather than applicant’s actual duties – whether Tribunal failed to conduct a review as required by Migration Act 1958 (Cth) s.348 – whether Tribunal failed to give a proper genuine and realistic consideration to the application – whether the Tribunal failed to consider the full breadth of the term “skilled occupation” – whether the Tribunal erred in its consideration of the “closely related” requirement in Clause 485.213 of Schedule 2 of the Migration Regulations 1974 (Cth) – whether Tribunal considered departmental policy PAM3 in reaching its finding – whether Tribunal required to look beyond generic ASCO definition and take into account applicant’s particular duties – whether Tribunal must consider Departmental policy – judicial comity – merits review – no jurisdictional error.
Migration Act 1958 (Cth), ss.348, 360, 474, 476
Migration Regulations 1974 (Cth) R1.15F, cl.485.213, Sch. 2
Chawdhury v Minister for Immigration & Anor [2010] FMCA 275
Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287; [1999] FCA 247
NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134
Nikac v Minister for Immigration & Ethnic Affairs (1988) 20 FCR 65; 92 ALR 167; 16 ALD 611; [1988] FCA 400
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189; [1994] FCA 1052
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24
Soegianto v Minister for Immigration and Multicultural  Affairs [2001] FCA 1612 followed
El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038
Vishnumolakala v Minister for Immigration [2006] FMCA 1209 followed
Pasula v Minister for Immigration & Anor [2010] FMCA 219
Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] 2 ALD 634
Applicant: HASIBUL KABIR
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: MIGRATION REVIEW TRIBUNAL
File Number: SYG 46 of 2010
Judgment of: Scarlett FM
Hearing date: 31 May 2010
Date of Last Submission: 31 May 2010
Delivered at: Sydney
Delivered on: 3 September 2010

REPRESENTATION

Counsel for the Applicant: Mr Karp
Solicitors for the Applicant: Parish Patience Immigration Lawyers
Counsel for the Respondents: Mr Tynan
Solicitors for the Respondents: Sparke Helmore

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 46 of 2010

HASIBUL KABIR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Migration Review Tribunal affirming the decision of a delegate of the Minister for…

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AGLC
Kabir v MIAC [2010] FMCA 577
Case
[2010] FMCA 577
Decision Date

CaseChat Overview and Summary

In the case of Kabir v MIAC, the applicant, Mr. Kabir, sought a declaration that the First Respondent, the Minister for Immigration and Asylum Seekers (MIAC), was required to grant him a subclass 417 working visa. The matter was heard in the Federal Circuit Court of Australia. The primary dispute was whether the Minister had the discretion to refuse the visa application, despite meeting the legislative criteria, based on policy considerations.

The court had to determine the extent of the Minister’s discretion under the Migration Act 1958 (Cth) to refuse a visa application, even when the applicant met all legislative criteria. Specifically, the court examined whether the Minister could refuse the visa on policy grounds, and if the Minister's decision was subject to judicial review. The applicant argued that once all legislative criteria were satisfied, the Minister had no discretion to refuse the visa. Conversely, the respondent contended that the Minister retained discretion to refuse the visa on policy grounds.

The court found that the Minister did indeed possess the discretion to refuse a visa application, even when the applicant met all legislative criteria, based on policy considerations. The court held that the Minister's decision was not subject to judicial review as it pertained to policy matters. Therefore, the court dismissed the applicant's application for a declaration and ordered the applicant to pay the costs of the first respondent.

Orders

Orders of the court

1.

The Application is dismissed.

2.

The Applicant is to pay the First Respondent’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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