Migration Law Case Study

Table of Contents
Introduction......................................................................................................................................3

Task 1...............................................................................................................................................3

1.1 Tribunal of Australian Administrative...................................................................................3

Task 2...............................................................................................................................................4

2.1 Statutory.................................................................................................................................4

2.2 Principles for statutory interpretation....................................................................................4

2.3 Statutory interpretation, Employed by the Judge...................................................................5

Conclusion.......................................................................................................................................6

References........................................................................................................................................7

Legal Laws...................................................................................................................................7
Introduction
The purpose of this report is to analyse the case of two applicants of Nepal and the Minister for
Immigration, Citizenship and Migrant Services and Multicultural Affairs. The applicants are
husband and wife and both are citizens of Nepal. The first applicant (husband) got the job of
accountant in Australia along with the permanent residence. The applicant has obtained a Master
degree in Professional Accounting from Australia in March 2015. On 11 December 2018, the
applicant got the invitation letter from the Ministry of Home Affairs to apply for the subclass 189
visa. This visa was to expire in 60 days and got expired on 12 March 2019, the department
official told the migration agent of the applicant that the visa got rejected and the applicant
should withdraw the application, upon which the applicant decided not to withdraw the
application. The ministry of the delegate of Home Minister rejected the applicant visa on the
basis of lack of valid skills assessment because of requirements of Schedule 2 of cl 189.222 of
the Migration Regulations 1994 (Cth) (“the Regulations”) as “at the time of the invitation”. The
Applicant decided to appeal in administrative Tribunal, on 20 November 2019 the Tribunal made
a decision to not grant a visa to the applicant. Now the applicant wants to seek the judicial
review on the Tribunal review.

Task 1
1.1 Tribunal of Australian Administrative
The current Australian Tribunal is an important part of society. However, there are two types of
Tribunal one is administrative and the second one is civil. The administrative Tribunal is
responsible for the actions of the government while the role of the civil Tribunal is to resolve the
dispute of a private company. In 1975 the government of Australia established the administrative
appeal of Tribunal as the general administrative Tribunal so, that the government decisions can
be on the range of the board. The civil Tribunal include migration, fisheries, corporation,
compensation and freedom of information, taxation, insurance and many other areas. While in
the case of Administrative Tribunal, social security appeals for the Tribunal, the Review Board
of Veteran, and Tribunal for the refugee and migration review1.

1
Thapa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 686
The decisions of the Tribunal was relatively short, at the 13 paragraph of Tribunal decision it is
stated that there was two skill assessment from the Tribunal end, one skill assessment was dated
on 21 September 2015 while the other assessment was dated on 10 January 2019. The Tribunal
founded that no expiry dates were mentioned in the first assessment. Because of this reason the
Tribunal then applied the cl 189.222 (d) to the first assessment of the applicant along with three
years. Moreover, the reason for this implication was that Tribunal was not satisfied with the
criteria that were given to the applicant at the time of implication. Although during the second
skill assessment the Tribunal founded the applicant suitable for the occupation of the nominated
skill but the applicant was not available at the time of invitation on 11 December 2019. Lastly,
the Tribunal observed that the applicant has relied on the cases of Waensila v Minister for
Immigration and Border Protection [2016] FCAFC 322 (“Waensila”) and Berenguel v Minister
for Immigration and Citizenship [2010] HCA 8 (“Berenguel”), but Tribunal mentioned that the
context of Thapa case and the other two cases upon which the applicant was relying was
completely different so that the reason that criteria did not match the skill assessment at the time
of invitation. To apply for a 189 subclass visa there should be a necessary skill assessment
present at the time of invitation. This decision was made by Tribunal on 11 December 20193.

Task 2
2.1 Statutory
The term statutory is basically known as setting the statute of the law. Statutory and the Law are
two different terms and both of them are considered with Law. When something is legal then it is
the law while on the other hand statutory is regulated around the law. For example, there are
some actions that are illegal to do and considered as against the law while there are no regulating
laws if something is not statutory.

2.2 Principles for statutory interpretation

There are some basic principles that are repeatedly stated to govern the statutory interception but
these principles are according to the decisions of the high court of Australia without any kind of
apparent disagreement. Although some authors have stated the high court of Australia have

2
Waensila v Minister for Immigration and Border Protection
[2016] FCAFC 32.
3
Berenguel v Minister for Immigration and Citizenship
[2010] HCA 8.
involved some meaningful statements from the consideration of context and also from any
contested provisions.

 There is a requirement of context and purpose to approach the statutory interpretation

rather but for the interpretation of statute words literal approach is required.
 The legislation of statutory interpretation should be established on the basis of
harmonious goals that are effective to operate coherently.
 To exclude the fundamental rights the provisions for legislative should not be read.

2.3 Statutory interpretation, Employed by the Judge

Basically, this court is not about any kind of dispute. The facts state that the applicant did not
have any kind of assessment skill during the invitation to apply for a 189 visa so, the invitation
may have been expired two months before the applicant submitted the application. But the
applicant believes that there is still time to apply although the time that was allowed before
expiring was 60 days, the applicant had obtained the skill assessment at that time period. In
short, the whole story of this case revolves around the wording and regulations of cl 189.222 “at
the time of invitation”.

The court has considered every single fact very carefully. The final sentence of the heading
“Primary Criteria” of cl 189.222 mentions that “all criteria must be satisfied at the time decision
is made on the application”. Keeping this in mind the applicant had acquired every requirement
and the criteria were satisfied according to the statement. The consultant of the applicant has
mentioned that in the cl 189.222 the word letters are used but the relevant text is written as "time
of invitation” not as “date of invitation” so, because of this difference the result can draw out.
The consultant particularly mentions the two cases upon which the applicant is relied on, one is
Berenguel per French CJ, Gummow and Crennan JJ, the concern of this case was to grant the
subclass visa of 885 (independent, skilled). Furthermore, the relevant construction of 885.213 of
the Regulations was turned on which mentions that if the applicant is to show the skill of
appropriate vocational English, the requirement of relevant time is needed.

The high court noted some of the points like the requirement of medical examination should be
provided to the applicant by the Australian Federal Police for evidence especially at the time of
application. But according to compliance proof, there were no such requirements. The
documents that are submitted in the court states that the applicant's construction requires that the
high court should read the provision of the word that is not there and moreover ordinary and
plain meaning should be given to the words that are present. It is given a statement in the high
court from the department that the time provided to the applicant to apply for the visa was 60
days after the arrival of the invitation. According to the high court, it is strange that the applicant
was able to meet all the criteria for a visa but still the applicant was unable to provide additional
information.

The high court gets satisfied from the applicant's end and states that plain unfairness and
absurdity has been done with the applicant. Court gives the statement of High Court in
Berenguel that alternative construction should be given to the applicant as it does not
compromise the purpose of the regulation and moreover, this statement matches the Act of s 55
which mentions that the rest of the information can be provided to the Minister until the next
date is given from the Minister ‘decision4.

Conclusion
The whole scenario of this case was to use clear words so that the criteria that are relevant can be
satisfied like "the date of invitation" should be used as "during the period of the time of the
invitation". Rather than this, the invitation should be specified like in this case it should be
mentioned in the invitation that 60 days from the date of the letter. Hence in the final decision of
the court, the relief has been sought in the initiating application while the applicant has been
upheld.

4
Thapa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 686
References
Legal Laws
Thapa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 686

Berenguel v Minister for Immigration and Citizenship [2010] HCA 8

Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32