Patel v Minister for Immigration and Citizenship [2011] FCA 1220

Patel v Minister for Immigration and Citizenship [2011] FCA 1220

The appeal was dismissed because, even assuming the appellant could seek to change the nominated skilled occupation to Computing Professional, cl 485.214 required that an application for assessment of skills for that nominated skilled occupation be made at the time of the visa application, and the appellant had not applied for such an assessment at that time. Sections 54, 55, 104 and 105 of the Migration Act 1958 (Cth) did not permit the appellant in the circumstances to cure that failure by changing the nominated skilled occupation after the application was made.

Jurisdiction
Australia
Judgment Date
31 October 2011
Procedural Posture
Migration Appeal From the Federal Magistrates Court of Australia / Appeal
Outcome
Appeal dismissed with costs.
Legal Topics
['subclass 485 Skilled Graduate Visa' 'nominated Skilled Occupation' 'skills Assessment' 'jurisdictional Error' 'construction of Migration Regulations']
['migration Law' 'administrative Law'] ['subclass 485 Skilled Graduate Visa' 'nominated Skilled Occupation' 'skills Assessment' 'jurisdictional Error' 'construction of Migration Regulations']

Case Brief

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Procedural Posture

Migration Appeal From the Federal Magistrates Court of Australia / Appeal

Legal Issues

  1. 1 ['Whether the requirement in Migration Regulations 1994 (Cth) Sch 2 cl 485.214 required the appellant to have applied for a skills assessment for the nominated skilled occupation at the time of the visa application.' 'Whether the appellant could change his nominated skilled occupation from Family Counsellor to Computing Professional during the visa application process.' 'Whether ss 54, 55, 104 and 105 of the Migration Act 1958 (Cth) permitted correction or change of the nominated skilled occupation in the circumstances.']

Ratio Decidendi

The appeal was dismissed because, even assuming the appellant could seek to change the nominated skilled occupation to Computing Professional, cl 485.214 required that an application for assessment of skills for that nominated skilled occupation be made at the time of the visa application, and the appellant had not applied for such an assessment at that time. Sections 54, 55, 104 and 105 of the Migration Act 1958 (Cth) did not permit the appellant in the circumstances to cure that failure by changing the nominated skilled occupation after the application was made.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed with costs.']