Khan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 10

Khan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 10

The Tribunal correctly identified that Mr Khan's nominated skilled occupation was chef and that the relevant qualification was the Diploma of Management, considered the qualification and the ANZSCO description of chef as wholes, and was entitled to conclude that the qualification was not closely related to the nominated occupation. It was required to assess the nominated occupation of chef, not a future role such as head chef, and no jurisdictional error by the Tribunal or error by the Federal Circuit Court was established. The proposed new ground about head chef lacked merit and leave to rely on it was refused.

Jurisdiction
Australia
Judgment Date
16 January 2023
Procedural Posture
Migration Appeal / Appeal From Federal Circuit Court Orders Dismissing an Application for Review of the Administrative Appeals Tribunal's Decision Affirming a Delegate's Refusal to Grant a Temporary Graduate (graduate Work) Subclass 485 Visa
Outcome
Leave to rely on ground 2 refused; appeal dismissed with costs payable by the appellant to the first respondent.
Legal Topics
['temporary Graduate (graduate Work) Subclass 485 Visa' 'australian Study Requirement' 'closely Related Qualification and Nominated Skilled Occupation' 'jurisdictional Error' 'leave to Raise New Appeal Ground']
['migration Law' 'administrative Law'] ['temporary Graduate (graduate Work) Subclass 485 Visa' 'australian Study Requirement' 'closely Related Qualification and Nominated Skilled Occupation' 'jurisdictional Error' 'leave to Raise New Appeal Ground']

Case Brief

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Procedural Posture

Migration Appeal / Appeal From Federal Circuit Court Orders Dismissing an Application for Review of the Administrative Appeals Tribunal's Decision Affirming a Delegate's Refusal to Grant a Temporary Graduate (graduate Work) Subclass 485 Visa

Legal Issues

  1. 1 ['Whether the Tribunal erred in determining that the Diploma of Management was not closely related to the nominated skilled occupation of chef for cl 485.222 of the Migration Regulations 1994 (Cth).' 'Whether the Tribunal failed to undertake a proper comparison between the qualification and the nominated occupation, including by allegedly failing to consider the study aspect or a training guide.' 'Whether leave should be granted to raise a new ground alleging that the Tribunal should have considered the occupation of head chef within ANZSCO occupation Chef - 351311.']

Ratio Decidendi

The Tribunal correctly identified that Mr Khan's nominated skilled occupation was chef and that the relevant qualification was the Diploma of Management, considered the qualification and the ANZSCO description of chef as wholes, and was entitled to conclude that the qualification was not closely related to the nominated occupation. It was required to assess the nominated occupation of chef, not a future role such as head chef, and no jurisdictional error by the Tribunal or error by the Federal Circuit Court was established. The proposed new ground about head chef lacked merit and leave to rely on it was refused.

Court Disposition

Leave to rely on ground 2 refused; appeal dismissed with costs payable by the appellant to the first respondent.

Orders

  • ['Leave to rely on ground 2 of the notice of appeal is refused.' 'Appeal dismissed.' "The appellant to pay the first respondent's costs of the appeal to be assessed by a registrar of this Court on a lump sum basis if not agreed."]