Chatib v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 92

Chatib v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 92

The Trades Recognition Authority did not make the assessment required by Pt 816.721(2)(b)(ii), because it assessed the applicant's skills against Australian standards as at the date of its 2002 assessment rather than against the Australian education or training standards as at 1 November 1993. The body was not "unable to make an assessment"; it had capacity to assess but had asked the wrong question. Applying Bellaiche, the Tribunal was under a legal duty to withhold its decision and request the Trades Recognition Authority to make the relevant assessment. Its failure to do so was jurisdictional error, requiring certiorari and remittal.

Jurisdiction
Australia
Judgment Date
13 February 2004
Procedural Posture
Migration Judicial Review / Federal Court Application for Mandamus, Certiorari and Injunctions Challenging a Migration Review Tribunal Decision
Outcome
Application allowed; Migration Review Tribunal decision quashed and matter remitted; no order as to costs.
Legal Topics
['class 816 Special (permanent) Entry Permit' 'transitional (permanent) Visa' 'trade Qualifications or Experience Assessment' 'jurisdictional Error' 'migration Review Tribunal Review' 'certiorari and Remittal']
['migration Law' 'administrative Law'] ['class 816 Special (permanent) Entry Permit' 'transitional (permanent) Visa' 'trade Qualifications or Experience Assessment' 'jurisdictional Error' 'migration Review Tribunal Review' 'certiorari and Remittal']

Case Brief

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Procedural Posture

Migration Judicial Review / Federal Court Application for Mandamus, Certiorari and Injunctions Challenging a Migration Review Tribunal Decision

Legal Issues

  1. 1 ['Whether the relevant Australian education or training standards for Pt 816.721(2)(b)(ii) were the standards as at 1 November 1993.' 'Whether the Trades Recognition Authority made the assessment required by Pt 816.721(2)(b)(ii).' 'Whether the Trades Recognition Authority was "unable to make an assessment" so as to require referral to a State or Territory authority or assessment by the Minister or Tribunal.' 'Whether the Tribunal was obliged to withhold its decision and request the Trades Recognition Authority to answer the correct assessment question.' "Whether the Tribunal's process involved jurisdictional error."]

Ratio Decidendi

The Trades Recognition Authority did not make the assessment required by Pt 816.721(2)(b)(ii), because it assessed the applicant's skills against Australian standards as at the date of its 2002 assessment rather than against the Australian education or training standards as at 1 November 1993. The body was not "unable to make an assessment"; it had capacity to assess but had asked the wrong question. Applying Bellaiche, the Tribunal was under a legal duty to withhold its decision and request the Trades Recognition Authority to make the relevant assessment. Its failure to do so was jurisdictional error, requiring certiorari and remittal.

Court Disposition

Application allowed; Migration Review Tribunal decision quashed and matter remitted; no order as to costs.

Orders

  • ['The decision of the Migration Review Tribunal made on 7 May 2003 be quashed.' 'The matter be remitted to the Migration Review Tribunal for further consideration in accordance with law.' 'No order as to costs.']