Manik v MIAC

Case [2012] FCA 619

FEDERAL COURT OF AUSTRALIA

Manik v Minister for Immigration and Citizenship

[2012] FCA 619

Citation: Manik v Minister for Immigration and Citizenship [2012] FCA 619
Appeal from: Manik v Minister for Immigration & Anor [2012] FCA 149
Parties: MD MONERUZZAMAN MANIK v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL
File number: NSD 422 of 2012
Judge: COWDROY J
Date of judgment: 15 June 2012
Catchwords: MIGRATION – appellant seeks skilled visa – department finds courses studied by applicant not closely related to appellant’s nominated skilled profession – appellant appeals –– whether a complementary relationship between study and profession sufficient – whether Tribunal must follow departmental guidance – appeal dismissed
Legislation: Migration Regulations 1994 (Cth) reg 485.213
Cases cited: Anderson v Director General of the Department of Environment & Climate Change (2008) 251 ALR 633
Manik v Minister for Immigration [2012] FMCA 149
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Pasula v Minister for Immigration [2010] FMCA 275
Uddin v Minister for Immigration and Citizenship [2010] FCA 1281
Date of hearing: 17 May 2012
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 22
Solicitor for the Appellant: The Appellant appeared in person
Solicitor for the First Respondent: Sparke Helmore Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 422 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:

MD MONERUZZAMAN MANIK
Appellant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

COWDROY J

DATE OF ORDER:

15 JUNE 2012

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The Appellant pay the costs of the First Respondent.

Note:    Settlement and entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 422 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:

MD MONERUZZAMAN MANIK
Appellant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

COWDROY J

DATE:

15 JUNE 2012

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. The appellant appeals from a decision of Federal Magistrate Smith dated 28 February 2012: Manik v Minister for Immigration [2012] FMCA 149. The matter before the Federal Magistrate was an application for judicial review of the decision of the Migration Review Tribunal (‘the Tribunal’), which was dated 22 July 2011.

  2. The Tribunal’s decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) to refuse to grant a Skilled (Provisional) (Class VC) visa to the appellant. The Minister’s decision was dated 11 November 2010.

  3. In his application for a skilled visa, the appellant nominated his skilled profession as ‘cook’. The contentious issue in these proceedings concerns reg 485.213 of the Migration Regulations 1994 (Cth) (‘the regulation’), which states:

    The following requirements are met:

    (a)the applicant satisfied the Australian study requirement in the period of 6 months ending immediately before the…

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AGLC
Manik v MIAC [2012] FCA 619
Case
[2012] FCA 619
Decision Date

CaseChat Overview and Summary

The case of Manik v MIAC involved an appeal by the appellant against a decision by the Migration Review Tribunal (MRT) that the courses he had studied were not closely related to his nominated skilled profession, which resulted in his application for a skilled visa being rejected. The appellant argued that the Tribunal failed to give proper, genuine and realistic consideration to the evidence and submissions presented, and that it should have followed the Department's guidance that a complementary relationship between the study and the profession was sufficient. The appeal was heard in the Federal Court of Australia.

The primary legal issues were whether the Tribunal had given proper, genuine and realistic consideration to the evidence and submissions, whether it had erred in not following the Department's guidance, and whether the Tribunal had correctly distinguished between a qualification that was closely related to the nominated occupation and one that was merely complementary. The court had to determine whether there was any jurisdictional error evident from the Tribunal's reasoning and if the Tribunal had correctly applied the relevant test for determining the relationship between the study and the profession.

The court held that the Tribunal had given proper, genuine and realistic consideration to the evidence and submissions, and that it had correctly distinguished between a qualification that was closely related to the nominated occupation and one that was merely complementary. The court also held that the Tribunal was not bound to follow the Department's guidance and that it was correct to apply the relevant test for determining the relationship between the study and the profession. The court found no jurisdictional error in the Tribunal's decision and dismissed the appeal.

The court made an order that the appeal be dismissed and that the appellant pay the costs of the first respondent. The court held that the Tribunal's decision was correct and that the appellant's appeal was without merit. The court also held that the appellant should bear the costs of the proceedings.

Orders

Orders of the court

1. The appeal be dismissed.

2. The Appellant pay the costs of the First Respondent.

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

In oral submissions, the appellant stated that three years ago (namely after completion of his one year cooking course), he received legal advice that stated that the law had changed to require two years of study in a trade course, as opposed to one year of study. Although the opportunity was open to the appellant to study cooking for two years and thus qualify for the visa, the appellant’s understanding of the advice provided to him was that a one year course would be sufficient.CONSIDERATION The question of whether a matter has been given proper, genuine and realistic consideration must be considered by reference to what the decision-maker has written or said. What is required is more than mere lip service to the evidence and submissions of the applicant: Anderson v Director General of the Department of Environment & Climate Change (2008) 251 ALR 633. However, a court must be careful to ensure that in considering such a ground of appeal, it does not cross the line into impermissible merits review. With respect to the appellant’s first ground of appeal, a consideration of the reasons of the court below and the Tribunal does not reveal a failure to provide proper, genuine and realistic consideration. The Tribunal and the Federal Magistrates Court took into consideration and referred to the submissions of the appellant. The reasoning reveals that Smith FM gave thorough consideration to the appellant’s submissions. The appellant’s second ground of appeal does not reveal any error on any point of law. Smith FM stated in his decision at [26]-[28] that the Court could not engage in merits review by entertaining the appellant’s arguments regarding the merits of the case. This is clearly the correct position at law. The Federal Magistrate was required to consider whether there was any jurisdictional error evident from the reasoning of the Tribunal and his Honour came to the conclusion that there was none. With respect to the final ground, the respondent referred the Court to Uddin v Minister for Immigration and Citizenship [2010] FCA 1281. Such case dealt with a very similar factual matrix. In fact, the appellant in that case attended the same institution and studied the same courses as the appellant in the current proceedings. In Uddin North J considered an argument that the Tribunal had erred in deciding not to follow the policy in PAM 3 which stated that the question was whether the course of study was ‘complementary’ to the stated profession. His Honour stated at [12]:At [33], the Tribunal clearly draws the distinction between the two concepts and distinguishes a case based on the pre-existing “relevant” test and thereby shows that it appreciated that the “relevance” test was different from the “closely related” test. At [34], the Tribunal expresses its final conclusion in terms of close relationship and applies the correct test. In my view, the Tribunal was correct to draw a distinction between a qualification which was closely related to the nominated occupation and a qualification which was less closely related, namely, merely complementary. In any event, the Tribunal, at [29], makes a fallback finding of fact that the IT qualification was not even complementary or useful in the occupation of a cook, having compared the work of a cook to the aims and skills relevant to the IT qualification.