Celik v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1529

Celik v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1529

The application failed because the applicants did not establish that the Tribunal fell into error. Any failure to deal with the two youngest children could not have affected the outcome because only the first applicant was relied on to satisfy the primary criteria. The Tribunal did not ignore evidence; when it said there was no evidence to satisfy it, it was making findings about the effect of the evidence. It was open to the Tribunal to doubt the claimed length of work experience and to consider the first applicant's remuneration when assessing whether his record of achievement was exceptional. The applicants' real complaint was disagreement with the Tribunal's fact-finding, which was...

Jurisdiction
Australia
Judgment Date
10 December 2002
Procedural Posture
Application for Relief Pursuant to S 39 B of the Judiciary Act 1903 (cth) in Relation to a Migration Review Tribunal Decision Affirming Refusal of Visas Under the Migration Act 1958 (cth) / Final Judgment in the Federal Court of Australia on Judicial Review
Outcome
Application dismissed with costs.
Legal Topics
['subclass 805 (skilled) Visa' 'exceptional Record of Achievement' 'employment Nomination Scheme' 'migration Review Tribunal' 'privative Clause' 'jurisdictional Error' 'hickman Provisos' 'relevant and Irrelevant Considerations']
['migration Law' 'administrative Law'] ['subclass 805 (skilled) Visa' 'exceptional Record of Achievement' 'employment Nomination Scheme' 'migration Review Tribunal' 'privative Clause' 'jurisdictional Error' 'hickman Provisos' 'relevant and Irrelevant Considerations']

Case Brief

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Procedural Posture

Application for Relief Pursuant to S 39 B of the Judiciary Act 1903 (cth) in Relation to a Migration Review Tribunal Decision Affirming Refusal of Visas Under the Migration Act 1958 (cth) / Final Judgment in the Federal Court of Australia on Judicial Review

Legal Issues

  1. 1 ["Whether the Migration Review Tribunal erred by failing to consider and make decisions in relation to two children born after the visa application but before the Tribunal's decision." "Whether the Tribunal erred by expressing doubt about the first applicant's claimed work experience without rejecting his explanation for an inconsistency in the evidence." "Whether the Tribunal's statements that there was no evidence before it to satisfy it meant that it wrongly found there was no evidence at all or ignored probative evidence." "Whether the Tribunal took into account an irrelevant consideration by considering the first applicant's salary when assessing whether he had an exceptional record of achievement." 'Whether any alleged error could avoid the operation of s 474 of the Migration Act 1958 (Cth) by falling outside the Hickman provisos.']

Ratio Decidendi

The application failed because the applicants did not establish that the Tribunal fell into error. Any failure to deal with the two youngest children could not have affected the outcome because only the first applicant was relied on to satisfy the primary criteria. The Tribunal did not ignore evidence; when it said there was no evidence to satisfy it, it was making findings about the effect of the evidence. It was open to the Tribunal to doubt the claimed length of work experience and to consider the first applicant's remuneration when assessing whether his record of achievement was exceptional. The applicants' real complaint was disagreement with the Tribunal's fact-finding, which was...

Court Disposition

Application dismissed with costs.

Orders

  • ['The application be dismissed.' "The applicants pay the respondent's costs of the proceeding."]