Khan v Minister for Immigration and Border Protection [2018] FCAFC 85

FEDERAL COURT OF AUSTRALIA

Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 Appeal from: Khan v Minister for Immigration and Border Protection [2017] FCCA 2585

File number: ACD 89 of 2017

Judges: TRACEY, CHARLESWORTH AND DERRINGTON JJ

Date of judgment: 14 May 2018

Date of publication of reasons: 1 June 2018

Catchwords: MIGRATION – appeal from a judgment of the Federal Circuit Court which dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal – where the Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the appellant a Skilled (Provisional) Temporary Graduate (Class VC, Subclass 485) visa on the basis that he had not satisfied cl 485.223 of Sch 2 of the Migration Regulations 1994 (Cth) – where the visa application was not accompanied by evidence that the appellant had applied for a skills assessment – where, at the time of the visa application, he had not applied for a skills assessment – where, by the time of the Tribunal hearing, he had obtained a successful skills assessment – whether the Tribunal misconstrued cl 485.223 in affirming the delegate's decision to refuse the visa – whether the FCC erred in dismissing the judicial review application STATUTORY INTERPRETATION – consideration of the words "accompanied by evidence" in cl 485.223 of Sch 2 of the Migration Regulations 1994 (Cth) – consideration of Anand v Minister for Immigration and Citizenship (2013) 215 FCR 562; [2013] FCA 1050 and Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; [2010] HCA 8

Legislation: Federal Circuit Court of Australia Act 1999 (Cth) s 15 Migration Act 1958 (Cth) ss 54, 55, 56, 349, 353, 357A, 359 Migration Regulations 1994 (Cth) Sch 2 cls 485.223, 487.216