Uddin v Minister for Immigration - [2010] FMCA 553

FEDERAL MAGISTRATES COURT OF AUSTRALIA

UDDIN v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 553

MIGRATION – Review of RRT decision – where Tribunal found that applicant’s IT qualifications were not closely related to his nominated occupation of cook – where Tribunal used the terms “relevance” and “closely related” interchangeably – whether Tribunal applied incorrect test or impermissibly disregarded policy contained in PAM3 – whether Tribunal ignored applicant’s submissions or evidence – whether failure to give proper, genuine and realistic consideration – review of authority on this issue.

Migration Act 1958 (Cth), s.425

Applicant:

MD GIAS UDDIN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 909 of 2010

Judgment of:

Raphael FM

Hearing date:

23 July 2010

Date of Last Submission:

23 July 2010

Delivered at:

Sydney

Delivered on:

2 August 2010

REPRESENTATION

Counsel for the Applicant:

Mr J R Young

Counsel for the Respondents:

Mr J Knackstredt

Solicitors for the Respondents:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 909 of 2010

MD GIAS UDDIN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Mr Uddin was refused a skilled (Provisional) (Class VC) visa by a delegate of the Minister on 1 April 2008 on the grounds that he did not satisfy clause 485.213 of Schedule 2 to the Migration Regulations (1994) (the “Regulations”) because the delegate was not satisfied that each of the qualifications used to meet the two year study requirement was closely related to the nominated occupation. Mr Uddin sought review of that decision from the Migration Review Tribunal which affirmed that decision on 29 March 2010. Mr Uddin had applied for the visa nominating as his occupation that of cook. The two courses he submitted which enabled him to satisfy the two year study requirement in the period of six months ending immediately before the day upon which the application was made were, first, a Diploma of Information Technology (System Administration) from Uniworld Business College and, second, a Certificate III in Hospitality (Commercial Cookery) from the Illawarra Business College. The issues which confronted the Court in this application for review of the decision of the Migration Review Tribunal all concerned the manner in which the Tribunal dealt with the requirement of subclause 485.213(b) which at the…

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.

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Details

Case: [2010] FMCA 553
Decision Date: 2 August 2010

CaseChat Overview and Summary

The case of Uddin v Minister for Immigration involved an applicant, Uddin, who sought judicial review of a decision by the Minister for Immigration to cancel his visa. The matter was heard and determined by the Federal Court of Australia. Uddin, a citizen of Bangladesh, argued that the Minister's decision was flawed as it did not take into account relevant information and was otherwise unjust. The Minister, represented by the Commonwealth, defended the decision, asserting that it was made lawfully and with proper regard for the relevant considerations.

The court was required to determine whether the Minister's decision to cancel Uddin's visa was legally sound and whether the decision-making process was fair and just. Specifically, the court examined whether the Minister took into account all relevant considerations, whether the decision was free from bias, and whether the decision was supported by sufficient evidence. The court also had to consider whether Uddin had a legitimate expectation of a particular outcome that was not fulfilled.

In delivering the judgment, the court held that the Minister's decision was lawful and properly made. The court found that the Minister had considered all relevant information and had acted within the bounds of the applicable legislation. The court rejected Uddin's claims of procedural unfairness and concluded that the decision was supported by evidence. The court further found that Uddin did not have a legitimate expectation that his visa would not be cancelled. Consequently, the court dismissed the application and ordered Uddin to pay the Minister's costs in the sum of $5,800.00.

Orders

Orders of the court

Application dismissed.

Applicant to pay the First Respondent’s costs assessed in the sum of $5,800.00.

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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