Prasad v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PRASAD v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 57

MIGRATION – Migration Review Tribunal – Skilled Graduate (temporary) (Class VC) subclass 485 visa – whether MRT was in error to declare guidance in Policy Advice Manual as to the requirement that study be ‘closely related’ to the applicant’s nominated skilled occupation “unlawful” – whether MRT was in error to ignore guidance in Policy Advice Manual as to the requirement that study be ‘closely related’ to the applicant’s nominated skilled occupation – no error demonstrated.

Migration Regulations 1994, cl.1.1.15F, 485.213, 485.213(b)

Drake v MIEA (No.2) (1979) 2 ALD 634
Uddin v Minister for Immigration [2010] FMCA 553
Uddin v Minister for Immigration and Citizenship [2010] FCA 1281

Applicant: SUNIL PRASAD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 673 of 2011

Judgment of: Jarrett FM

Hearing date: 3 November, 2011

Date of Last Submission: 3 November, 2011

Delivered at: Brisbane

Delivered on: 3 February, 2012

REPRESENTATION

Counsel for the Applicant: Mr Boccabella

Solicitors for the Applicant: A. J. Torbey & Associates

Counsel for the Respondents: Ms Wheatley

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed on 1 August, 2011 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 673 of 2011

SUNIL PRASAD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Mr Prasad seeks relief against an order of a Migration Review Tribunal which dismissed a review application by him against a decision of the Minister’s delegate to refuse him a Skilled Graduate visa.

2. Relevantly, to secure the grant of the visa, Mr Prasad needed to convince the Minister’s delegate, and the MRT on the review application, that he had studied  a course that was “closely related” to the skilled occupation nominated by him in his visa application.

3. The issue to be determined in this case is whether the MRT denied itself jurisdiction by asking itself the wrong question when it came to consider if Mr Prasad’s Master of Business (International Hotel Management) was “closely related” to his nominated skilled occupation of Market Research Analyst.

4. For the reasons that follow I have come to the conclusion that it did not.

Some necessary facts

1. Mr Prasad is a citizen of India born on 25 January, 1974.  On 6 March 2009 he applied for a Skilled Graduate (temporary) (Class VC) subclass 485 visa.  For the purposes of that application he needed to nominate a skilled occupation.  Mr Prasad stated that his nominated occupation was that of a Market Research Analyst.

2. One of the conditions that Mr Prasad had to satisfy to secure the grant of his visa was to be found in cl.485.213 of Schedule 2 to the Migration Regulations 1994.  That clause required that:

   a)Mr Prasad satisfy “the Australian study requirement” in the period of 6 months ending immediately before the day on which his application was made;

   b)each degree, diploma or trade…