Khan v Minister for Immigration and Border Protection [2018] FCAFC 85

Khan v Minister for Immigration and Border Protection [2018] FCAFC 85

The appeal failed because the appellant had not applied for a skills assessment when he lodged the visa application and the application was not accompanied by evidence of such an application as required by cl 485.223. Later evidence that he had applied for and obtained a favourable skills assessment could not satisfy that time of application criterion. The Tribunal correctly construed and applied cl 485.223, had no discretion to ignore it, and no inconsistency with the Migration Act provisions or material error by the Federal Circuit Court was established.

Jurisdiction
Australia
Judgment Date
14 May 2018
Procedural Posture
Migration Appeal From Dismissal of Application for Judicial Review / Appeal From the Federal Circuit Court of Australia Judgment Dismissing Judicial Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Skilled (provisional) Temporary Graduate (class Vc, Subclass 485) Visa
Outcome
Appeal dismissed; appellant ordered to pay the first respondent's costs of the appeal.
Legal Topics
['subclass 485 Visa' 'time of Application Criteria' 'skills Assessment Evidence' 'judicial Review' 'jurisdictional Error' 'legal Unreasonableness']
['migration' 'administrative Law' 'statutory Interpretation'] ['subclass 485 Visa' 'time of Application Criteria' 'skills Assessment Evidence' 'judicial Review' 'jurisdictional Error' 'legal Unreasonableness']

Case Brief

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Procedural Posture

Migration Appeal From Dismissal of Application for Judicial Review / Appeal From the Federal Circuit Court of Australia Judgment Dismissing Judicial Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Skilled (provisional) Temporary Graduate (class Vc, Subclass 485) Visa

Legal Issues

  1. 1 ['Whether cl 485.223 of Sch 2 of the Migration Regulations 1994 (Cth) required evidence that the appellant had applied for a skills assessment to accompany the visa application at the time it was made.' 'Whether the Tribunal misconstrued cl 485.223 or erred by not treating a favourable skills assessment obtained after the visa application as satisfying the criterion.' 'Whether the Federal Circuit Court erred in dismissing the judicial review application.' 'Whether cl 485.223 was inconsistent with provisions of the Migration Act 1958 (Cth), including ss 55, 56, 353, 357A and 359.']

Ratio Decidendi

The appeal failed because the appellant had not applied for a skills assessment when he lodged the visa application and the application was not accompanied by evidence of such an application as required by cl 485.223. Later evidence that he had applied for and obtained a favourable skills assessment could not satisfy that time of application criterion. The Tribunal correctly construed and applied cl 485.223, had no discretion to ignore it, and no inconsistency with the Migration Act provisions or material error by the Federal Circuit Court was established.

Court Disposition

Appeal dismissed; appellant ordered to pay the first respondent's costs of the appeal.

Orders

  • ['The appeal be dismissed.' "The appellant pay the first respondent's costs of the appeal."]