Constantino v Minister for Immigration and Border Protection [2013] FCA 1301

Constantino v Minister for Immigration and Border Protection [2013] FCA 1301

On the proper construction of cl 485.213(b), the whole of the appellant's Advanced Diploma of Hospitality Management had to be compared with the whole of her nominated skilled occupation of marketing specialist. A relationship that is merely complementary or useful is insufficient. The Tribunal was entitled to find that the qualification was not closely related to the nominated occupation, cl 485.213(b) was not invalid for uncertainty, and no jurisdictional or appealable error was shown.

Jurisdiction
Australia
Judgment Date
04 December 2013
Procedural Posture
Migration Appeal / Appeal From the Federal Circuit Court of Australia Dismissing Judicial Review of a Migration Review Tribunal Decision
Outcome
Appeal dismissed with costs.
Legal Topics
['skilled (provisional) (class Vc) Visa' 'subclass 485 Skilled Graduate Visa' 'australian Study Requirement' 'closely Related Qualification and Nominated Skilled Occupation' 'jurisdictional Error' 'validity of Delegated Legislation']
['migration Law' 'administrative Law'] ['skilled (provisional) (class Vc) Visa' 'subclass 485 Skilled Graduate Visa' 'australian Study Requirement' 'closely Related Qualification and Nominated Skilled Occupation' 'jurisdictional Error' 'validity of Delegated Legislation']

Case Brief

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Procedural Posture

Migration Appeal / Appeal From the Federal Circuit Court of Australia Dismissing Judicial Review of a Migration Review Tribunal Decision

Legal Issues

  1. 1 ["Whether the appellant's Advanced Diploma of Hospitality Management was closely related to her nominated skilled occupation of marketing specialist for cl 485.213(b) of the Migration Regulations 1994 (Cth)." 'Whether cl 485.213(b) requires comparison of the qualification as a whole with the nominated occupation as a whole, or permits reliance on individual subjects within the qualification.' 'Whether a relationship that is complementary or useful is sufficient to satisfy the phrase closely related.' 'Whether cl 485.213(b) is void for vagueness or uncertainty.' "Whether the Tribunal made jurisdictional error and whether there was appealable error in the Federal Circuit Court's orders."]

Ratio Decidendi

On the proper construction of cl 485.213(b), the whole of the appellant's Advanced Diploma of Hospitality Management had to be compared with the whole of her nominated skilled occupation of marketing specialist. A relationship that is merely complementary or useful is insufficient. The Tribunal was entitled to find that the qualification was not closely related to the nominated occupation, cl 485.213(b) was not invalid for uncertainty, and no jurisdictional or appealable error was shown.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The name of the first respondent be amended to "Minister for Immigration and Border Protection".' 'The appeal be dismissed.' "The appellant pay the first respondent's costs of the appeal."]