Rahman, Mohammad Arifur v Minister for Immigration & Multicultural Affairs [1997] FCA 282

Rahman, Mohammad Arifur v Minister for Immigration & Multicultural Affairs [1997] FCA 282

The delegate approached the visa points assessment on the wrong legal footing by applying departmental Procedures Advice Manual criteria as determinative of the occupational standard and disregarding the ASCO standard, when the Minister or departmental officers could not themselves lay down the standard for the...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
06 February 1997
Procedural Posture
Application for Review of a Decision of a Delegate of the Minister for Immigration and Multicultural Affairs Rejecting a Subclass 126 Visa Application / Federal Court Reasons for Judgment and Orders
Outcome
Decision rejecting the visa application set aside; application remitted; respondent ordered to pay applicant's costs.
Legal Topics
['visa Points Test' 'usual Occupation' 'relevant Australian Authority' 'procedures Advice Manual' 'error of Law' 'occupational Standards']
['migration Law' 'administrative Law'] ['visa Points Test' 'usual Occupation' 'relevant Australian Authority' 'procedures Advice Manual' 'error of Law' 'occupational Standards']

Source-derived case record

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Procedural Posture

Application for Review of a Decision of a Delegate of the Minister for Immigration and Multicultural Affairs Rejecting a Subclass 126 Visa Application / Federal Court Reasons for Judgment and Orders

Legal Issues

  1. 1 ['Whether the decision-maker erred in law by relying on Procedures Advice Manual criteria for waiter/waitress (skilled: silver service) rather than the occupational standard in the Australian Standard Classification of Occupations dictionary or other relevant standards.' 'Whether the Minister or an officer of the Department may lay down the standard for a relevant occupation for the purposes of Schedule 6 to the Migration Regulations.' 'Whether assessment of equivalence to Australian standards under paragraph 6102 of Schedule 6 is to be made by NOOSR or the Department of Industrial Relations before the Minister may make that assessment.']

Ratio Decidendi

The delegate approached the visa points assessment on the wrong legal footing by applying departmental Procedures Advice Manual criteria as determinative of the occupational standard and disregarding the ASCO standard, when the Minister or departmental officers could not themselves lay down the standard for the occupation and equivalence was to be assessed by the relevant Australian authority as defined in the Migration Regulations. That error of law required the decision rejecting the visa application to be set aside and remitted.

Court Disposition

Decision rejecting the visa application set aside; application remitted; respondent ordered to pay applicant's costs.

Orders

  • ['The decision rejecting the visa application be set aside.' 'The application be remitted for consideration according to the proper principles of law.' "The respondent pay the applicant's costs."]