MEVADA v Minister for Immigration - [2010] FMCA 616

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MEVADA v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 616

MIGRATION – Requirement that application be “accompanied by evidence” – whether could be lodged up to date of decision.

INTERPRETATION – Meaning of “accompanied by”.

Migration Act 1958 (Cth), ss.55, 65, 474
Migration Regulations 1994, sch.2, reg.1.15C

Bandi v Minister for Immigration & Amor [2010] FMCA 365
Berenguel v Minister for Immigration and Citizenship 264 ALR 417
Chidemo v Minister for Immigration and Citizenship & Amor [2010] FMCA 19
Habit & Ors v Minister for Immigration & Amor [2010] FMCA 450
Hossain v Minister for Immigration & Amor [2007] FMCA 175
Minister for Immigration and Citizenship v Grant & Ors [2009] FCA 1059
Nowicka v Superannuation Complaints Tribunal [2008] FCA 939
Rawson Finances v Deputy Commissioner of Taxation [2010] FCA 538
Todhunter v Attorney-General (Cth) 124 ALR 442
Winkler v Director of Public Prosecutions (1990) 94 ALR 361

Applicant:

KALPESH MEVADA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 1595 of 2009

Judgment of:

Turner FM

Hearing date:

9 July 2010

Date of Last Submission:

9 July 2010

Delivered at:

Melbourne

Delivered on:

17 August 2010

REPRESENTATION

Counsel for the Applicant:

Mr Fairfield

Solicitors for the Applicant:

Lily Ong Solicitors

Counsel for the Respondents:

Mr Horan

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Court issues a writ of certiorari quashing the decision of the Migration Review Tribunal (the “MRT”) dated 25 November 2009 in MRT case number 0902955.
The Court issues a writ of Mandamus requiring the Migration Review Tribunal to hear and determine MRT case number 0902955 according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1595 of 2009

KALPESH MEVADA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Migration Review Tribunal (the “Tribunal”). That decision affirmed the decision of a delegate of the Minister to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa.
The delegate refused the visa application after holding that the applicant did not satisfy cl.485.215 in sch.2 to the Migration Regulations 1994 (the “Regulations”).
The criteria for a subclass 485 visa are set out in Part 485 of sch.2 to the Regulations. Primary criteria to be met at the time of application (cl.485.21) were set out in cl.485.215 as follows:
485.215 Either
(a)The applicant’s nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupations, and the applicant has vocational English; or
(b)The applicant has competent English
(c)The application is accompanied by evidence that the applicant has made arrangements to undergo a language test specified by the Minister, in an instrument in writing
(Court Book “CB” 74).
Where an application is accompanied by evidence that the applicant has made arrangements to undergo a specified language test, an applicant has to satisfy clause 485.222 also which required that:
·The applicant’s nominated…

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.

Keep reading for free

Create a free CaseChat account to read MEVADA v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] FMCA 616
Decision Date: 17 August 2010

CaseChat Overview and Summary

Mevada was a person who sought to remain in Australia on a subclass 457 visa. After the Minister for Immigration made a decision to cancel Mevada’s visa, Mevada lodged an application for review of that decision with the Migration Review Tribunal. The Tribunal found that Mevada’s application was invalid because it was not accompanied by evidence. Mevada sought judicial review of the Tribunal’s decision. The central issue before the court was whether the requirement for an application for review to be “accompanied by evidence” meant that the application had to be accompanied by evidence at the time it was lodged, or whether it could be accompanied by evidence at a later date, before the decision was made. The court found that the correct interpretation of the relevant legislation was that an application could be accompanied by evidence at any time before the decision was made. The court found that the Tribunal had erred in its interpretation of the relevant legislation, and so the decision of the Tribunal was quashed. The court ordered that the Tribunal hear and determine the application according to law.

Orders

Orders of the court

The Court issues a writ of certiorari quashing the decision of the Migration Review Tribunal (the “MRT”) dated 25 November 2009 in MRT case number 0902955.

The Court issues a writ of Mandamus requiring the Migration Review Tribunal to hear and determine MRT case number 0902955 according to law.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.