MAESTRO v Minister for Immigration - [2016] FCCA 1095

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAESTRO & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1095

Catchwords:
MIGRATION – Application for Student (Temporary)(Class TU) visa – review of decision of Migration Review Tribunal – whether the Tribunal misunderstood the meaning of “substantial part” in cl.5A407 of the Migration Regulations 1994 (Cth) – whether the Tribunal misunderstood the meaning of “leading to” in cl.5A407 – jurisdictional error– writs issued.

Legislation:

Migration Regulations 1994 (Cth), cll.572.223(2)(a), 5A204, 5A507(1)(d)
Migration Amendment Regulations 2005 (No 8) (Cth), item [3] to sch 3
Trade Practices Act 1974 (Cth), s.45A

Cases cited:
AHX15 v Minister for Immigration & Border Protection [2015] FCA 1183
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
Commissioner for Superannuation v Scott (1987) 13 FCR 404; [1987] FCA 79
Day v Harness Racing New South Wales [2014] 88 NSWLR 594
Environment Protection Authority v Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499
Fang Wangv Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1044
Kabir v Minister for Immigration & Citizenship (2010) 243 FLR 1; [2010] FMCA 132
King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Palser v Grinling [1948] AC 291
Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 44 ALR 557; [1982] FCA 223
Seneviratne v Minister for Immigration & Citizenship [2009] FMCA 907
SZCBT v Minister for Immigration & Multicultural Affairs [2007] FCA 9
Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12
Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union & Others (1979) 27 ALR 367

Other materials:
Oxford online dictionary

First Applicant:

WINSEL MAESTRO

Second Applicant:

DAYLEN CANDELARIO

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3281 of 2014

Judgment of:

Judge Smith

Hearing date:

5 April 2016

Date of Last Submission:

5 April 2016

Delivered at:

Sydney

Delivered on:

13 May 2016

REPRESENTATION

Solicitors for the Applicant:

Mr M. Jones, Parish Patience Immigration Lawyers

Counsel for the First Respondent:

Mr D. Hughes

Solicitors for the Respondents:

Clayton Utz

ORDERS

A writ of certiorari issue directed to the second respondent quashing the decision of the Tribunal dated 21 October 2014.
A writ of mandamus issue directed to the second respondent requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 23 May 2014 in accordance with the law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3281 of 2014

WINSEL MAESTRO

First Applicant

DAYLEN CANDELARIO

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicants are husband and wife. On 2 April 2014 they applied for a Student (Temporary) (Class TU) visa. The first applicant was the primary applicant. For that reason, I will refer to…

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: [2016] FCCA 1095
Decision Date: 13 May 2016

CaseChat Overview and Summary

The applicant, Maestro, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant Maestro a visa. The matter was heard before Judge Smith in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing Maestro's application, thereby vitiating the decision.

Judge Smith reasoned that the delegate's assessment had indeed been flawed. The delegate had placed undue weight on certain aspects of Maestro's criminal history while failing to adequately consider mitigating factors and evidence of rehabilitation presented in the application. The Court applied the principle that a decision-maker must consider all relevant considerations and must not be swayed by irrelevant ones. The failure to properly weigh the evidence constituted a jurisdictional error.

Consequently, Judge Smith quashed the Minister's decision and remitted the matter to the Minister for reconsideration according to law.

Orders