Sunil Prasad v Minister For Immigration And Citizenship and Anor

[2013] HCASL 34

SUNIL PRASAD

v

MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR

[2013] HCASL 34
B32/2012

1. The applicant is a citizen of India.  He arrived in Australia in 2004.  On 6 March 2009, the applicant applied for a Skilled (Provisional) (Class VC) visa.  On 10 December 2009, a delegate of the first respondent refused the application.

2. On 1 July 2011, the Migration Review Tribunal ("the Tribunal") affirmed the delegate's decision. The issue for the Tribunal was whether the applicant satisfied the study requirement for a Subclass 485 (Skilled - Graduate) visa. The Migration Regulations 1994 (Cth) ("the Regulations") required the applicant to have completed two years of study "closely related" to his nominated skilled occupation. Before the Tribunal, the applicant relied on a policy promulgated by the first respondent which said that study would be "closely related" if the skills underpinning it were "complementary" or "useful" to the nominated occupation. However, the Tribunal found this policy to be unlawful because it did not reflect the wording of the Regulations. Since the applicant could only show that one of the qualifications relied on to meet the study requirement was useful, not closely related, to his nominated occupation, he failed to meet the visa requirements.

3. On 3 February 2012, the Federal Magistrates Court of Australia (Jarrett FM) dismissed an application for judicial review of the Tribunal's decision.  Although his Honour did not agree with the conclusion reached by the Tribunal with respect to the policy, he considered that it was nevertheless entitled to formulate its own view.

4. An appeal the Federal Court of Australia (Logan J) was unsuccessful. His Honour agreed with the Tribunal's reasons as to the meaning of "closely related" and held that it had correctly applied the Regulations; as it was required to do so.

5. The applicant does not advance any argument to show that the Tribunal's construction of the Regulations is wrong. There is no substance to the complaint that the Full Court misapplied principles of judicial comity. The application raises no question of principle. The applicant's prospects of success are insufficient to warrant a grant of special leave. Special leave is refused.

6. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

S.M. Kiefel
13 March 2013 S.J. Gageler