Perera v MIAC - [2008] FMCA 1526

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PERERA v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1526

MIGRATION – Migration Review Tribunal – Skilled Independent Overseas Student (Residence) (Class DD) visa – bonus points – capital investment – whether Tribunal considered issue – whether denial of procedural fairness.

Migration Act 1958 (Cth), ss.360A, 362B, 379A and (5), 379C (1), (5) and (6) and 379G

Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143
Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292
Tickner v Chapman (1995) 57 FCR 451
SZEMB v Minister for Immigration [2005] FMCA 448
VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407

Applicant:

HITHESI HARENDRA MAPATUNA PERERA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 710 of 2008

Judgment of:

Riley FM

Hearing date:

27 October 2008

Date of Last Submission:

27 October 2008

Delivered at:

Melbourne

Delivered on:

12 November 2008

REPRESENTATION

Counsel for the Applicant:

Ms King-Sien

Solicitors for the Applicant:

Fairfields Lawyers

Counsel for the First Respondent:

Sharon Burchell

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The application filed on 13 June 2008 and amended on 27 October 2008 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 710 of 2008

HITHESI HARENDRA MAPATUNA PERERA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Migration Review Tribunal (“the Tribunal”). On 1 June 2006, the applicant applied for a Skilled Independent Overseas Student (Residence) (Class DD) visa. To qualify for the visa, the applicant needed 120 points. Based on his skills, age, English-language ability and an Australian qualification, the delegate accepted that the applicant was entitled to 115 points.
In addition, five bonus points could have been awarded if the applicant, at the time of the application or at the time of decision:
a. [had] deposited at least AUD100000 in a designated security for a term of not less than 12 months; or
b.…; or
c.…; or
d.[was] accredited as a professional interpreter or translator (level 3) in a designated language by the National Accreditation Authority for Translators and Interpreters.[1]
[1] Item 6A81 of Schedule 6A to the Migration Regulations 1994.
The applicant claimed that he was entitled to five bonus points on the basis that he was fluent in an Australian community language, namely Sinhalese. However, despite repeated requests and extensions of time, the applicant failed to provide to the delegate a language accreditation certificate or a NAATI test result. Eventually, on 20 February 2007, the delegate concluded that the applicant was not entitled to any bonus points and refused the application.
The applicant applied to the Tribunal on 22 March 2007 for review of the delegate’s decision.…

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: [2008] FMCA 1526
Decision Date: 12 November 2008

CaseChat Overview and Summary

Perera v MIAC is a case before the court involving the applicant, Perera, and the respondent, MIAC. The dispute revolves around a decision made by MIAC, which Perera is challenging. The matter was heard in the Federal Circuit Court of Australia, presided over by Judge McKerracher.

The legal issues that the court was required to decide centred on the validity and process of the decision made by MIAC, and whether there were any procedural errors or unfairness in the manner in which the decision was reached. The applicant argued that the decision was flawed and that there were significant procedural issues that needed to be addressed. The respondent, on the other hand, maintained that the decision was valid and that no procedural errors occurred.

The court thoroughly examined the evidence and arguments presented by both parties. Ultimately, the court found that the decision made by MIAC was lawful and that there were no procedural errors. The court determined that the applicant had not demonstrated any valid grounds for challenging the decision. Consequently, the application was dismissed, and the applicant was ordered to pay the respondent’s costs in the sum of $5,000.

Orders

Orders of the court

The application filed on 13 June 2008 and amended on 27 October 2008 is dismissed.

The applicant pay the first respondent’s costs fixed in the sum of $5,000.

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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