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MIGRATION - Temporary Business entry visa - applicant satisfied some but not all of ASCO criteria - decision of Tribunal based on this failure to comply - bias claimed but not established by mere assertion.

Kabir v Minister for Immigration [2002] FMCA 299 (20 November 2002)

Kabir v Minister for Immigration [2002] FMCA 299 (20 November 2002)
Last Updated: 13 December 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KABIR v MINISTER FOR IMMIGRATION
[2002] FMCA 299



MIGRATION - Temporary Business entry visa - applicant satisfied some but not all of ASCO criteria - decision of Tribunal based on this failure to comply - bias claimed but not established by mere assertion.



Migration Act 1958 (Cth) s.474

Craig v South Australia (1995) 184 CLR 163

Abebe v Commonwealth (1999) 162 ALR1

NAAV v Minister for Immigration [2002] FCAFC 228

Applicant:
MOHAMMAD AZHARUL KABIR



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 827 of 2002



Delivered on:


20 November 2002



Delivered at:


Sydney



Hearing Date:


20 November 2002



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in person



Counsel for the Respondent:


Mr S Lloyd



Solicitors for the Respondent:


Sparke Helmore



ORDERS

(1) Application dismissed.

(2) Applicant to pay respondent's costs in the sum of $4,000.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 827 of 2002

MOHAMMAD AZHARUL KABIR


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Migration Review Tribunal which was made on 19 June 2002. The applicant is a Bangladeshi citizen, he came to Australia on 12 August 2001 on a short stay (Visitor Class TR subclass 676 )Visa. In his submissions prepared for the purposes of this hearing he said that it was the intention of his visit to look for better employment in Australia. Prior to his arrival in Australia he had worked in a fish market in Bangladesh and had obtained from the appropriate authorities in that country, certificates of competency in the fish sales industry, including membership of the Fisheries Institute in Dacca. Two documents evidencing this fact are found at pages [18-19] of the court book.

2. On 24 September 2001 the applicant applied for a Temporary Business Entry (class UC) Visa to allow him to remain in Australia in employment with an approved sponsor for a period of four years. The application was considered by a delegate for the Minister who declined to grant the visa on 30 November 2001. The applicant lodged an application for review to the Migration Review Tribunal on 29 November 2001 and the Tribunal's decision was given on 19 June 2002.

3. There is no dispute that the applicant was properly sponsored for his visa and there is no dispute that the applicant has had some experience in the retail fish industry. But the position that he was nominated for was that of a retail buyer and that class of employment is one in respect of which there are certain criteria laid down in a document entitled Australian Standard Classification of Occupations (ASCO). That of a retail buyer is 3996-11 and there is set out in the classification a series of tasks with which the applicant is required to be familiar.

4. The delegate and the Tribunal, on behalf of the Minister, utilised the ASCO classifications for the purpose of considering whether or not they were satisfied that the applicant is a person to whom a visa should be granted. In this case neither the delegate nor the Tribunal reached that stage of satisfaction, they felt that there were areas in which the applicant's training and experience were deficient. They have come to that view on the basis of information about the applicant's training and experience that was given to them by the applicant himself.

5. In paragraph 31 of the Tribunal's reasons for decision found at [74 CB]:

"The Tribunal was not satisfied, among other things, that the visa applicant had: implemented marketing strategies compiled by it; established working plans; anticipated consumer trends and arranged manufacturing to specification. The Tribunal was therefore not satisfied that he had the skills to do those duties in Australia, or in the relevant position."

6. The applicant in his written submissions relies on a series of grounds found in the numbered paragraphs 1 to 7 which commence on the third page of those submissions. At numbered paragraph 5 he makes reference to an unnamed decision of Merkel J citing Craig v South Australia (1995) (184 CLR 163 at 179).

7. In paragraph six of his submissions he makes reference to the judgment of Gaudron J in Abebe v Commonwealth (1999) 162 ALR1 at 33, paragraph [113]. My reading of the applicant's grounds for seeking review of the decision of the Tribunal is that the Tribunal made errors of the type considered in Craig v South Australia although there is, in paragraph 7 of his application, a reference to actual bias.

8. In regard to the so-called "Craig errors", the Federal Court have made it plain in their decision in NAAV v the Minister that such errors are no longer able to sustain a successful judicial review, and that the privative clause found in section 474 of the Migration Act expands the powers of the Tribunal to allow it to make that type of error without impugning its decision. I have had regard to the documents contained in the court book and to the extent that it is necessary would add only that they do not appear to me to indicate any jurisdictional error of the type suggested by the applicant.

9. I have also considered the court book for the purposes of ruling on the applicant's claim that the decision was affected by actual bias constituting judicial error. Whilst the authorities are not unanimous on what constitutes actual bias in the context of decisions under the Migration Act they all agree that it is something which is not easily proved. It is certainly not proved by mere assertion. I am quite satisfied that no grounds for that assertion exist from the documents before me. In these circumstances I must dismiss the applicant's application. The respondent has asked for its costs. It is entitled to them. I assess those costs in the sum of $4000 in accordance with part 21, rule 21.02(ii)(a) of the Federal Magistrate's Court Rules.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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