Khan v Minister for Immigration and Border Protection [2016] FCA 877

Khan v Minister for Immigration and Border Protection [2016] FCA 877

The appeal was dismissed because the appellant identified no jurisdictional error by the Tribunal and no appellable error by the Federal Circuit Court. The Tribunal was entitled to compare the appellant's actual duties at the Caltex outlet with the ANZSCO description of customer service manager, to find that the duties were not equivalent or substantially equivalent to that occupation and were more closely aligned with retail supervisor duties, and to conclude that the position associated with the nominated occupation was not genuine for cl 457.223(4)(d)(ii). The appellant's qualifications, hardship, and the visa outcome of another employee did not establish error.

Jurisdiction
Australia
Judgment Date
03 August 2016
Procedural Posture
Migration Appeal From Federal Circuit Court Judicial Review Decision / Appeal to the Federal Court of Australia
Outcome
Appeal dismissed.
Legal Topics
['subclass 457 Visa' 'genuine Nominated Occupation' 'customer Service Manager' 'jurisdictional Error' 'judicial Review' 'anzsco Classification']
['migration Law' 'administrative Law'] ['subclass 457 Visa' 'genuine Nominated Occupation' 'customer Service Manager' 'jurisdictional Error' 'judicial Review' 'anzsco Classification']

Case Brief

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Procedural Posture

Migration Appeal From Federal Circuit Court Judicial Review Decision / Appeal to the Federal Court of Australia

Legal Issues

  1. 1 ['Whether the Federal Circuit Court erred in its construction or application of cl 457.223(4)(d)(ii) of Sch 2 to the Migration Regulations 1994 (Cth).' 'Whether the Tribunal committed jurisdictional error by finding that the position associated with the nominated occupation of customer service manager was not genuine.' "Whether the Tribunal ignored relevant material, including the appellant's IELTS result and academic qualifications." "Whether the appellant's grounds sought impermissible merits review rather than identifying jurisdictional or appellable error."]

Ratio Decidendi

The appeal was dismissed because the appellant identified no jurisdictional error by the Tribunal and no appellable error by the Federal Circuit Court. The Tribunal was entitled to compare the appellant's actual duties at the Caltex outlet with the ANZSCO description of customer service manager, to find that the duties were not equivalent or substantially equivalent to that occupation and were more closely aligned with retail supervisor duties, and to conclude that the position associated with the nominated occupation was not genuine for cl 457.223(4)(d)(ii). The appellant's qualifications, hardship, and the visa outcome of another employee did not establish error.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal is dismissed.' "The appellant must pay the first respondent's costs as agreed or taxed."]