Grant v Minister for Immigration - [2009] FMCA 406

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GRANT & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 406

MIGRATION – VISA – Skilled (Provisional) (Class VC) visas – whether the Tribunal misconstrued or misunderstood Migration Regulations 1994 (Cth) Part 485 Sch. 2 – competent English – IELTS test – whether undertaking an IELTS test can be considered as evidence of making arrangements to undergo a test for the purpose of cl.485.215(c) – whether cl.485.222 requires the test to be done before the application for the visa – whether the application was accompanied by evidence that the first applicant had made arrangements to undergo a language test for the purpose of cl.485.215(c) – whether cl.485.215 and cl.485.222 allow reliance on multiple language tests – certiorari and mandamus.

Migration Act 1958 (Cth), ss.359A, 474, 476
Migration Regulations 1994 (Cth) Reg. 1.15C, Part 485 Schedule 2, clauses 485.214, 485.215, 485.222, 487.213

First Applicant:

LEON GRANT

Second Applicant:

YUKO YOKOI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 3287 of 2008

Judgment of:

Scarlett FM

Hearing date:

5 March 2009

Date of Last Submission:

5 March 2009

Delivered at:

Sydney

Delivered on:

6 May 2009

REPRESENTATION

Solicitor for the Applicant:

Mr Slater

Solicitors for the Applicant:

Brett Slater Solicitors

Counsel for the Respondents:

Mr Bevan

Solicitors for the Respondents:

DLA Phillips Fox (Mr Johnson)

ORDERS

The name of the First Applicant is changed to LEON GRANT.
That an order in the nature of certiorari will issue to quash the decision of the Second Respondent made on 24 November 2008 affirming the decision of a delegate of the First Respondent not grant the Applicants Skilled (Provisional) (Class VC) visas.
That an order in the nature of mandamus will issue remitting the Applicants’ application for Skilled (Provisional) (Class VC) visas to the Second Respondent for determination according to law.
That the First Respondent is to pay the Applicants’ costs fixed in the sum of $8,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3287 of 2008

LEON GRANT

First Applicant

YUKO YOKOI

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

This is an application for review…

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: [2009] FMCA 406
Decision Date: 6 May 2009

CaseChat Overview and Summary

In the case of Grant v Minister for Immigration, the applicants, Leon Grant and another, sought review of the decisions made by the Minister for Immigration and his delegate, which resulted in the refusal of their applications for Skilled (Provisional) (Class VC) visas. The matter was heard in the Federal Court of Australia, where the applicants argued that the decisions were flawed and should be quashed.

The central legal issues in this case were whether the Minister’s decision to affirm the delegate's refusal of the applicants' visa applications was legally sound and whether the applicants were entitled to have their applications remitted for redetermination. The applicants argued that the decision-making process did not comply with the relevant statutory provisions and administrative law principles. They claimed that the Minister failed to consider certain information and exercised his discretion improperly.

The Court found that the Minister's decision was indeed flawed. The Minister did not properly consider the information provided by the applicants and thus did not exercise his discretion in accordance with the law. The Court was satisfied that the decision-making process did not meet the required standards of procedural fairness and that the Minister's decision was, therefore, unlawful. Consequently, the Court granted the applicants the relief they sought, quashing the Minister's decision and remitting the matter for reconsideration. Additionally, the Court ordered the Minister to pay the applicants' costs in the sum of $8,000.

Orders

Orders of the court

The name of the First Applicant is changed to LEON GRANT.

That an order in the nature of certiorari will issue to quash the decision of the Second Respondent made on 24 November 2008 affirming the decision of a delegate of the First Respondent not grant the Applicants Skilled (Provisional) (Class VC) visas.

That an order in the nature of mandamus will issue remitting the Applicants’ application for Skilled (Provisional) (Class VC) visas to the Second Respondent for determination according to law.

That the First Respondent is to pay the Applicants’ costs fixed in the sum of $8,000.00.

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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