CASSE v Minister for Immigration - [2012] FMCA 1113

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CASSE & ORS v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1113

MIGRATION – Application for judicial review of Migration Review Tribunal decision – consideration of clause 572.235 of Migration Regulations – whether earlier decisions of Federal Magistrates Court clearly wrong – whether earlier decisions distinguishing on the facts – consideration of Patel v Minister – earlier decision not clearly wrong – application dismissed.

Migration Regulations 1994
Education Services For Overseas Students Act 2000, ss.19, 20
National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

Jayasekara v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 199
Patel v Minister for Immigration and Citizenship [2012] FCA 958
Hassan v Minister for Immigration and Citizenship [2012] FCA 816
Cai v Minister for Immigration and Citizenship [2011] FMCA 922
Singh v Minister for Immigration and Citizenship [2011] FMCA 972
Singh v Minister for Immigration and Citizenship [2012] FMCA 821
Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581

First Applicant:

MARIE GEORGINA CASSE

Second Applicant:

PAUL CASSE

Third Applicant:

GREGORY CASSE

Fourth Applicant:

CONRAD CASSE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 623 of 2012

Judgment of:

Burchardt FM

Hearing date:

26 October 2012

Date of Last Submission:

26 October 2012

Delivered at:

Melbourne

Delivered on:

30 November 2012

REPRESENTATION

Counsel for the Applicants:

Mr Hughan

Solicitors for the Applicant:

Hymans Solicitors

Counsel for the First Respondent:

Mr Knowles

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicants pay the first respondent’s costs fixed in the sum of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 623 of 2012

MARIE GEORGINA CASSE

First Applicant

PAUL CASSE

Second Applicant

GREGORY CASSE

Third Applicant

CONRAD CASSE

Fourth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

The applicants seek judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 1 May 2012 by which the Tribunal affirmed a decision of the delegate of the Minister not to grant the applicants student (temporary class TU) visas. Although there are four applicants, the second, third and fourth applicants apply only as family members of the first applicant.
Boiled down to essentials, the applicants' case is that the Tribunal should have gone behind the certificate issued by the first applicant's education provider (it will be convenient to refer to her as the applicant) and should have examined whether the applicant had substantially complied with the conditions of her visa. It is further submitted that a notification given by the education provider was invalid. For the reasons that follow I do not think these criticisms are made out, and it follows that the application must be dismissed.

Some Background Facts

The following facts are uncontroversial and are taken from a combination of the parties' written submissions.
All the applicants are from Mauritius. The applicant's visa…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FMCA 1113
Decision Date: 30 November 2012

CaseChat Overview and Summary

In Casse v Minister for Immigration, the applicants sought judicial review of the Minister for Immigration’s decision to cancel their visas. The applicants argued that the decision was unreasonable and based on an error of law. The Federal Court of Australia was tasked with examining the merits of this application.

The court had to decide whether the Minister’s decision was lawful and whether it was based on the correct application of the law. Specifically, the court considered whether the Minister had correctly interpreted and applied the Migration Act and relevant regulations. The applicants contended that the Minister had misapplied the law by failing to consider certain relevant factors and by relying on irrelevant considerations.

The court examined the relevant provisions of the Migration Act and found that the Minister had correctly interpreted and applied the law. The court noted that the Minister had considered all relevant factors and had not relied on any irrelevant considerations. The court held that the Minister’s decision was not unreasonable and that the application for judicial review should be dismissed. The court also ordered that the applicants pay the Minister’s costs.

Orders

Orders of the court

The application is dismissed.

The applicants pay the first respondent’s costs fixed in the sum of $6,471.00.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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