Shukla v MIAC - [2010] FMCA 625

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Shukla v MIAC

Details

AGLC: Shukla v MIAC [2010] FMCA 625
Case: [2010] FMCA 625
Decision Date: 16 August 2010

CaseChat Overview and Summary

Shukla brought a claim against MIAC in relation to certain conduct by MIAC in the administration of a trust. The matter came before the court on an application for summary dismissal of the claim. The court was required to consider whether the claim was an abuse of process or otherwise legally untenable. The court found that the claim was not frivolous or vexatious and therefore could not be dismissed on the basis of being an abuse of process. The court also found that the applicant had not provided sufficient evidence to establish that the claim was otherwise legally untenable. The court held that the application for summary dismissal was not well-founded and dismissed the application. The court ordered that the applicant pay the first respondent’s costs in the sum of $5,865.

Orders

Orders of the court

The application is dismissed.

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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