KC v MIAC - [2013] FCCA 296

FEDERAL CIRCUIT COURT OF AUSTRALIA

KC v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 296

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 the Tribunal made a finding of fact which was not open on the evidence and took irrelevant considerations into account.

Legislation:

Migration Act 1958, ss.105, 474

Migration Regulations 1994, rr.1.15I, 2.26B, cl.485.221 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
Patel v Minister for Immigration & Citizenship (2011) 198 FCR 62
Chen v Minister for Immigration & Citizenship [2011] FMCA 859

Applicant:

AAKASH KC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1590 of 2012

Judgment of:

Judge Cameron

Hearing date:

14 May 2013

Date of Last Submission:

14 May 2013

Delivered at:

Sydney

Delivered on:

17 May 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1590 of 2012

AAKASH KC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, who is a citizen of Nepal, applied for a Skilled (Provisional) (Class VC) subclass 485 visa on 15 November 2010. On 10 January 2012 his application was refused by a delegate of the first respondent (“Minister”) on the basis that he did not satisfy the requirements of cl.485.221 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 was cl.485.221 which provided:
(1)The skills of the applicant for the applicant’s nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation.
(2)If the assessment mentioned in subclause (1) is made on the basis of a qualification obtained in Australia while the applicant was the holder of a student visa, the qualification was obtained as a result of studying a registered course.
Skilled occupation has the meaning given to it by r.1.15I which relevantly provides:
1.15I Skilled occupation
(1)A skilled occupation

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.

Continue reading KC v MIAC

Details

AGLC: KC v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 296
Case: [2013] FCCA 296
Decision Date: 17 May 2013

CaseChat Overview and Summary

The applicant, KC, sought judicial review of a decision made by the Migration Review Tribunal (the Tribunal). The dispute concerned the Tribunal's assessment of KC's application for a skilled visa.

The primary legal issues before the court were whether the Tribunal's decision was affected by jurisdictional error. Specifically, the court was asked to determine if the Tribunal made a finding of fact that was not open on the evidence before it, and if it took irrelevant considerations into account when reaching its decision.

Justice Cameron found that the Tribunal had indeed made a finding of fact that was not supported by the evidence presented. This finding related to the applicant's claimed work experience, which the Tribunal had discounted without adequate evidentiary basis. Furthermore, the court determined that the Tribunal had improperly considered certain information that was not relevant to the assessment of the applicant's eligibility for the visa. These errors were found to constitute jurisdictional error.

Consequently, the court quashed the decision of the Migration Review Tribunal and remitted the matter to the Tribunal for redetermination according to law.

Orders