Gaffar v Minister for Immigration & Multicultural Affairs 2000 [FCA] 293

FEDERAL COURT OF AUSTRALIA

Gaffar v Minister for Immigration & Multicultural Affairs [2000] FCA 293

MIGRATION – visa application – General (Residence) – skills-based visa – requirement to demonstrate "exceptional record of achievement" in the relevant occupation – food hall chef – criteria of excellence out of ordinary – criterion not to be limited by reference to occupation or workplace environment – application allowed.

Migration Act 1958

Migration Regulations 1994

MOHAMED AZFAR GAFFAR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 34 of 1999

FRENCH J

15 MARCH 2000

PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W34 OF 1999

BETWEEN: MOHAMED AZFAR GAFFAR

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: FRENCH J

DATE OF ORDER: 15 MARCH 2000

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The application is allowed. 2. The decision of the Immigration Review Tribunal is set aside and the matter remitted to the Immigration Review Tribunal to be decided according to law. 3. The Respondent is to pay the Applicant's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W34 OF 1999

BETWEEN: MOHAMED AZFAR GAFFAR

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: FRENCH J

DATE: 15 MARCH 2000

PLACE: PERTH

REASONS FOR JUDGMENT

Introduction 1 A Sri Lankan national who came to Australia on a student visa in 1994 has worked since 1995 as a chef at two Curry Houses in food halls in Perth shopping centres. He had formal qualifications and cooking experience from Sri Lanka before he came to Australia. He evidently impressed his employers here with his level of skill as a cook of Sri Lankan and other Asian foods. In 1997 he applied for a visa to enable him to stay permanently in Australia. The class of visa for which he applied required that he demonstrate "an exceptional record of achievement" in his occupation. In a decision making process that dragged on from August 1997 to May 1999, he was successively refused by a delegate of the Minister, by an internal Departmental Review Officer and, ultimately, by the Immigration Review Tribunal. He now applies for a review of the decision of the Immigration Review Tribunal. 2 The case raises a question about the proper construction and application of the legal criteria for the grant of the relevant visa.