FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SHAFIUZZAMAN v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 874 |
| MIGRATION – Review of decision of the Migration Review Tribunal – skilled occupation visa – meaning of “closely related” – “incorrect answers” provided on visa application form – request for impermissible merits review – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.105, 476, 499 Migration Regulations 1994 (Cth), regs.1.03, 1.15F, 1.15I, Sch.1, Sch.2, Sch.6B Acts Interpretation Act 1901 (Cth), s.15AA Migration Amendment Regulations 2007 (No.7) SLI 2007 No. 257 (Cth) |
| Applicant: | MD SHAFIUZZAMAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1571 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 4 October 2011 |
| Date of Last Submission: | 4 October 2011 |
| Delivered at: | Sydney |
| Delivered on: | 15 November 2011 |
REPRESENTATION
| Appearing for the Applicant: | Mr C Guan |
| Solicitors for the Applicant: | Paul Guan and Associates |
| Appearing for the Respondents: | Mr M Alderton |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 25 July 2011, and amended on 6 September 2011, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1571 of 2011
| MD SHAFIUZZAMAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 25 July 2011, and amended on 6 September 2011, pursuant to s.476 of…
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- AGLC
- Shafiuzzaman v MIAC [2011] FMCA 874
- Case
- [2011] FMCA 874
- Decision Date
CaseChat Overview and Summary
The legal issues before the court centred on whether the Tribunal correctly interpreted the migration regulations and whether the applicant's qualifications met the required criteria for the nominated occupation. Specifically, the court had to determine whether the Tribunal's finding that the applicant's IT qualification was not closely related to either "Baker" or "Pastry Cook" was correct. Additionally, the court examined whether the Tribunal properly considered the applicant's assertion that he had made an error in nominating "Baker" and should have nominated "Pastry Cook" instead.
The court examined the applicant's submissions and the Tribunal's decision record, noting that the Tribunal had correctly interpreted the migration regulations. The court found that the Tribunal was right in its assessment that the applicant's qualifications did not meet the required criteria for the nominated occupation. The court also held that the applicant's argument about the incorrect nomination of occupation was not sufficient to change the outcome. The court held that the Tribunal's decision was consistent with the applicable regulations and was not erroneous.
In conclusion, the court dismissed the applicant's appeal and ordered that he pay the costs of the first respondent. The decision underscored the importance of accurately nominating the correct occupation and ensuring that the qualifications align with the nominated occupation under the migration regulations.
Orders
Orders of the court
1.
The application made on 25 July 2011, and amended on 6 September 2011, is dismissed.
2.
The applicant pay the first respondent’s costs set in the amount of $4,400.
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
The applicant’s representative made written submissions on 29 June 2011 (CB 77 to CB 80), which seemed to anticipate an adverse decision from the Tribunal. For example, at points 14 and 15 of the written submissions (at CB 80):“14. But I wish to point it out notwithstanding that the judicial decisions support the proposition that the Tribunal may depart from the government policy only if the Tribunal can set out ‘the policy document is not in accordance with the migration regulations’ or ‘is not consistent with, or does not accurately reflect the regulation’.15. In the case that the Tribunal has decided to depart from the policy, we expect the Tribunal to give the reasons on how or why ‘the policy document is not in accordance with the migration regulations’ or ‘is not consistent with, or does not accurately reflect the regulation’.” The applicant and his advisor attended a hearing before the Tribunal the next day (CB 81). The Tribunal’s account is set out in its decision record ([18] to [21] at CB 93). Following the hearing, the applicant sent to the Tribunal (through his representative) a completed “Notification of incorrect answer(s)” form: “Form 1023” (a Department of Immigration and Citizenship form) (CB 84 to CB 86). The applicant sought to notify the Tribunal that the information he had provided for his nominated occupation as “Baker” was incorrect, and that the correct relevant “detail” was “Pastry Cook” (CB 86). Before the Tribunal the applicant and his representative pressed at least two points. First, that the applicant had made a “mistake” in nominating the occupation of “Baker” in his visa application ([19] at CB 93). He should have nominated the occupation of “Pastry Chef”, this being the occupation for which he had obtained, and provided, a skills assessment. Second, that the applicant’s IT qualification was, in any event, “closely related” to either of the occupations of “Baker” or “Pastry Cook”. The Tribunal found that:1)The applicant’s nominated occupation in the visa application was “Baker”, and that this was a skilled occupation for the purposes of the Regulations and the occupation against which the qualifications submitted needed to be assessed.2)The applicant had provided two qualifications (the IT qualification and Certificate III in Food Processing (Retail Baking) Cake and Pastry), neither of which on its own satisfied the requirement (in reg.1.15F) that the applicant complete one or more of his qualifications: “… in a total of at least 16 calendar months”.3)This meant that, to satisfy the requirement, regard must be had to both qualifications. That is, in relying also on the IT qualification to meet this requirement (reg.1.15F and cl.485.213(a)), the IT qualification must be “closely related” to the applicant’s skilled occupation (cl.485.213(b)).4)The Tribunal found that the IT qualification was not “closely related” to the nominated occupation of “Baker”, or for that matter to “Pastry Cook”. The applicant therefore failed to satisfy cl.485.213(b), a prescribed criterion for the grant of the visa ([38] at CB 96).