Do v Minister for Immigration & Multicultural Affairs [2002] FCA 1081

Do v Minister for Immigration & Multicultural Affairs [2002] FCA 1081

The Tribunal asked the correct question, namely whether the applicant had an exceptional record of achievement in the profession of engineer, and took into account his degree, work history, and language skills. It did not hold that multilingual ability could never contribute to such a record; rather, it found that the applicant's language skills had not been shown to have been applied to build a comparatively superior professional record. Because the applicant had not shown achievements raising him above competent civil engineers generally, no error of law was established and the application was dismissed.

Jurisdiction
Australia
Judgment Date
02 September 2002
Procedural Posture
Judicial Review Pursuant to Part 8 of the Migration Act 1958 of a Migration Review Tribunal Decision Affirming Refusal of a General Residence (class As) Visa, Subclass 805 / Final Judgment on Application for Judicial Review
Outcome
Application dismissed with costs.
Legal Topics
['general Residence (class As) Visa, Subclass 805' 'exceptional Record of Achievement' 'error of Law' 'relevant Considerations' 'judicial Review of Migration Review Tribunal Decision']
['migration Law' 'administrative Law'] ['general Residence (class As) Visa, Subclass 805' 'exceptional Record of Achievement' 'error of Law' 'relevant Considerations' 'judicial Review of Migration Review Tribunal Decision']

Case Brief

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Procedural Posture

Judicial Review Pursuant to Part 8 of the Migration Act 1958 of a Migration Review Tribunal Decision Affirming Refusal of a General Residence (class As) Visa, Subclass 805 / Final Judgment on Application for Judicial Review

Legal Issues

  1. 1 ['Whether the Tribunal erred in law within s 476(1)(e) of the Migration Act 1958 by misconstruing the expression "exceptional record of achievement" in cl 805.212 of the Migration Regulations 1994.' "Whether the Tribunal failed to take into account the applicant's degree, engineering work experience, and fluency in Russian, Vietnamese and English in combination when assessing whether he had an exceptional record of achievement." 'Whether the Tribunal disregarded relevant facts in a manner analogous to Gaffar v Minister for Immigration and Multicultural Affairs (2000) 59 ALD 421 or Bae v Minister for Immigration and Multicultural Affairs [2001] FCA 578.']

Ratio Decidendi

The Tribunal asked the correct question, namely whether the applicant had an exceptional record of achievement in the profession of engineer, and took into account his degree, work history, and language skills. It did not hold that multilingual ability could never contribute to such a record; rather, it found that the applicant's language skills had not been shown to have been applied to build a comparatively superior professional record. Because the applicant had not shown achievements raising him above competent civil engineers generally, no error of law was established and the application was dismissed.

Court Disposition

Application dismissed with costs.

Orders

  • ['The application be dismissed.' "The applicant pay the respondent's costs of the application such costs to be taxed in default of agreement."]