FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SHUKLA v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 625 |
| MIGRATION – MRT decision – independent skilled residence visa – bonus points for working in a skilled occupation – applicant performed some management tasks in a 7-11 shop – bonus points claimed as ‘office manager’ – Tribunal found better classification was ‘shop manager’ – effect of ASCO definitions of occupations – no error of fact or law – application dismissed. |
| Migration Regulations 1994 (Cth), r.1.03, Sch.2, cl.880.222, Sch.6A |
| Minister for Immigration & Citizenship v Kamruzzaman [2009] FCA 1562 Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 Parekh v Minister for Immigration [2007] FMCA 633 |
| Applicant: | SREYASH SHUKLA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 537 of 2010 |
| Judgment of: | Smith FM |
| Hearing date: | 16 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 16 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Parish Patience |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,865.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 537 of 2010
| SREYASH SHUKLA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Mr Shukla came to Australia in 2004, and studied until March 2006 at the Central Queensland University in Melbourne, gaining a degree of Master of Information Systems. On 28 August 2006, a migration agent lodged an application on his behalf for a Skilled Independent Overseas Student visa, class DD, subclass 880. This is a residence visa available to some people who gain qualifications in Australia which are relevant to a list of ‘skilled occupations’ gazetted by the Minister.
The application identified Mr Shukla’s nominated skilled occupation as “computer professional, ASCO code 2231-79”. Mr Shukla also needed to satisfy a time of decision requirement to achieve the qualifying score under a points test under Sch.2, cl.880.222 of the Migration Regulations. The relevant points were assessed pursuant to a table in Sch.6A.
Mr Shukla’s migration agent projected how, in his submission, Mr Shukla would achieve the necessary score of 120 points. Ultimately, all of these points were uncontroversial, except the achievement of five bonus points under Part 8 of schedule 6A. This provided four alternative grounds for these points in item 6A81:
Part 8 Bonus points qualification
…..
The applicant:
(a)has deposited at least AUD100 000 in a designated security for a term of not less than 12 months; or
(b)has been employed in Australia in a skilled occupation for a period of, or for periods totalling, at least 6 months in the 48 months immediately before the day on which the application was made while holding a visa authorising him or her to work; or
(c)is the holder of a qualification (that is of an equivalent standard to…
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- AGLC
- Shukla v MIAC [2010] FMCA 625
- Case
- [2010] FMCA 625
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
1.
The application is dismissed.
2.
The applicant must pay the first respondent’s costs in the sum of $5,865.
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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