Prasad v MIAC

Case [2012] FCA 591

FEDERAL COURT OF AUSTRALIA

Prasad v Minister for Immigration and Citizenship [2012] FCA 591

Citation: Prasad v Minister for Immigration and Citizenship [2012] FCA 591
Appeal from: Prasad v Minister for Immigration & Anor [2012] FMCA 57
Parties: SUNIL PRASAD v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL
File number: QUD 130 of 2012
Judge: LOGAN J
Date of judgment: 17 May 2012
Catchwords:

MIGRATION – subclass 485 (skilled-graduate) visa – proper construction of Migration Regulations 1994 (Cth) cl 485.213(b) that area of study is to be “closely related” to applicant’s nominated skilled occupation – whether Federal Magistrates Court had failed to appreciate that the Migration Review Tribunal directed itself to the wrong question and thereby committed jurisdictional error – Migration Review Tribunal declared guidance in ministerial policy manual as to the requirement that study be “closely related” to the applicant’s nominated skilled occupation to be unlawful

Held:  No such error by Federal Magistrates Court or by Migration Review Tribunal – preference for and adoption by Federal Magistrates Court of construction of definition of “closely related” in Uddin v Minister for Immigration and Citizenship [2010] FCA 1281 approved

PRACTICE AND PROCEDURE – notice of contention – requirement for notice where correctness of decision below being supported by respondent on other ground – alternative case raised only in written and oral submissions – costs not awarded to respondent as a result  
Legislation: Migration Act 1958 (Cth)
Migration Regulations (Cth)
Cases cited: Drake v Minister for Immigration and Ethnic Affairs [1979] 46 FLR 409 followed
Prasad v Minister for Immigration & Anor [2012] FMCA 57 referred to
Uddin v Minister for Immigration and Citizenship [2010] FCA 1281 applied
Uddin v Minister for Immigration [2010] FMCA 553 referred to
Date of hearing: 17 May 2012
Place: Brisbane
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 33
Counsel for the Appellant: Mr L Boccabella
Solicitor for the Appellant: AJ Torbey and Associates
Counsel for the Respondents: Ms AL Wheatley
Solicitor for the Respondents: Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 130 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:

SUNIL PRASAD
Appellant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

LOGAN J

DATE OF ORDER:

17 MAY 2012

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.No order as to costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 130 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:

SUNIL PRASAD
Appellant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

LOGAN J

DATE:

17 MAY 2012

PLACE:

BRISBANE

REASONS FOR JUDGMENT

  1. The appellant, Mr Prasad, on 6 March 2009, lodged an application for that class of visa under the Migration Act 1958 (Cth) (Migration Act), known as a subclass 485 (skilled-graduate) visa.…

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Details
AGLC
Prasad v MIAC [2012] FCA 591
Case
[2012] FCA 591
Decision Date

CaseChat Overview and Summary

The matter before the court was an appeal against a decision of the Migration Review Tribunal (MRT) by the applicant, Prasad, regarding the denial of a subclass 485 (skilled-graduate) visa. The Federal Magistrates Court had upheld the MRT's decision, and Prasad appealed to the court, arguing that both the Federal Magistrates Court and the MRT had erred in their interpretation of the Migration Regulations 1994 (Cth) cl 485.213(b), which requires the area of study to be "closely related" to the applicant's nominated skilled occupation. Prasad contended that the tribunal had misdirected itself by applying the wrong legal test and had thereby committed a jurisdictional error. Moreover, the MRT had declared the guidance in the ministerial policy manual as to the requirement that the study be "closely related" to the applicant's nominated skilled occupation to be unlawful.

The court was required to determine whether the Federal Magistrates Court and the MRT had correctly interpreted the term "closely related" as it applied to the applicant's area of study and nominated skilled occupation. The court also needed to consider whether the Federal Magistrates Court had failed to appreciate that the MRT had directed itself to the wrong question, thereby committing a jurisdictional error. Additionally, the court had to assess whether Prasad's failure to include the alternative case in his notice of contention resulted in the respondent being unable to raise the alternative case, which was only presented in written and oral submissions.

The court found that neither the Federal Magistrates Court nor the MRT had erred in their interpretation of the term "closely related." The court approved the Federal Magistrates Court's preference for and adoption of the construction of the definition of "closely related" as outlined in Uddin v Minister for Immigration and Citizenship [2010] FCA 1281. The court held that the Federal Magistrates Court had not failed to appreciate that the MRT had directed itself to the wrong question, and therefore no jurisdictional error had been committed. Consequently, the MRT's declaration that the guidance in the ministerial policy manual was unlawful was not disturbed by the court. Furthermore, the court held that the respondent was not deprived of the opportunity to raise the alternative case as it had only been presented in written and oral submissions, and no costs were awarded to the respondent as a result.

The court dismissed the appeal and made no order as to costs. The entry of orders is governed by Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The appeal is dismissed.

2. No order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

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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