Perera v Minister for Immigration - [2014] FCCA 1168

FEDERAL CIRCUIT COURT OF AUSTRALIA

PERERA v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1168

Catchwords:

MIGRATION – Judicial review – Migration Review Tribunal – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa (subclass 461) – student visa (subclass 573) – whether the tribunal engaged in jurisdictional error – whether the applicant’s spouse was an “eligible New Zealand citizen” – whether the applicant’s visa cancellation would have affected an Australian citizen – failure by the applicant to raise the effect of cancellation upon an Australian citizen – no error demonstrated by tribunal – application dismissed – costs awarded.

Legislation:

Australian Citizenship Act 2007 (Cth) s.12
Migration Act 1958 (Cth) s.359A
Migration Regulations 1994 (Cth) reg.1.03
Social Security (Administration) Act1999 (Cth) s.240
Social Security Act 1991 (Cth) s.7

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Re Ahmed v Secretary, Department of Family and Community Services (2005) 82 ALD 454
Re Bhikha Patel and Secretary, Department of Family and Community Services [2004] AATA 791
Sanmugasundaram v Secretary, Department of Family and Community Services (2004) 86 ALD 315

Applicant:

RAJITHA RAMINAL PERERA WEERASINGHE ARACHEMIGE

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

BRG 873 of 2013

Judgment of:

Judge Burnett

Hearing date:

13 March 2014

Date of Last Submission:

13 March 2014

Delivered at:

Brisbane

Delivered on:

18 March 2014

REPRESENTATION

Counsel for the Applicant:

Mr L. Burrow

Solicitors for the Applicant:

Gopal and Chand Lawyers

Counsel for the First Respondent:

Ms A. Stoker

Solicitors for the First Respondent:

Clayton Utz

ORDERS

That the name of the Applicant be amended to “Rajitha Raminal Perera Weerasinghe Arachemige.”
That the application filed on 1 October 2013 be dismissed.
That subject to application for any other order made within 7 days of the date of this order, the Applicant pay the Respondents’ costs fixed in the sum of $6646.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 873 of 2013

RAJITHA RAMINAL PERERA WEERASINGHE ARACHEMIGE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

The applicant, a citizen of Sri Lanka, seeks judicial review of a decision made by the Migration Review Tribunal (“the Tribunal”) on 3 September 2013 affirming a delegate’s earlier decision not to grant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa (subclass 461) (“461 visa”).
He entered Australia as a holder of a student visa (subclass 573) (“student visa”), which was granted on 27 March 2008. Condition 8202(2)(a) of that visa required him to be enrolled in a registered course.
Until 4 June 2010 he was enrolled in various courses at the Metro College of Technology to do with the food and beverage industry. However, he did not continue those studies beyond that time. On 30 August 2011, he applied for a 461 visa. Receipt of that visa application was acknowledged, and on 21 September 2011, the Department…

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.

Continue reading Perera v Minister for Immigration

Details

AGLC: Perera v Minister for Immigration [2014] FCCA 1168
Case: [2014] FCCA 1168
Decision Date: 18 March 2014

CaseChat Overview and Summary

The applicant, Mr. Perera, sought judicial review of a decision by the Migration Review Tribunal (MRT). The dispute concerned the eligibility of Mr. Perera's spouse, Ms. Tivalu, as an "eligible New Zealand citizen" for the purpose of a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa (subclass 461). Mr. Perera also contended that the MRT had engaged in jurisdictional error by failing to consider the impact of his visa cancellation on an Australian citizen, although this point was not raised before the Tribunal. The matter was heard in the Federal Circuit Court of Australia before Judge Burnett.

The primary legal issue before the Court was whether the MRT had erred in law by concluding that Ms. Tivalu had not been established as an "eligible New Zealand citizen." This required the Court to consider the evidentiary requirements for proving such eligibility, particularly in relation to the definition of a "certificate" under the *Social Security (Administration) Act 1999* (Cth). A secondary issue was whether the MRT had committed jurisdictional error by failing to consider the effect of Mr. Perera's visa cancellation on an Australian citizen, despite this not having been raised by the applicant before the Tribunal.

Judge Burnett reasoned that the MRT's conclusion regarding Ms. Tivalu's eligibility was sound. The Court accepted the respondent's submission that the applicant had failed to provide appropriate documentary evidence to establish Ms. Tivalu as an eligible New Zealand citizen, specifically a certificate as contemplated by s.240 of the *Social Security (Administration) Act 1999*. While other documents like a Medicare card or Centrelink income statement were presented, they did not meet the statutory definition of a certificate. The Court noted that proving eligibility through a certificate would not have been difficult had the applicant pursued it. Consequently, no error was demonstrated in the MRT's finding that the matter had not been established. Regarding the second issue, the Court found no basis to conclude that the MRT had committed jurisdictional error by failing to consider the impact on an Australian citizen, as this point was not raised by the applicant before the Tribunal.

The application for judicial review was dismissed. Costs were awarded in favour of the respondent.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The definition of “Australian resident” is provided for in s.7 SSA, and in respect of “certificate” is informed in part by s.240 Social Security (Administration) Act1999 (Cth), which deals with documentary evidence. It provides:“Documentary evidence(1) If the signature of any person who: (a) holds or has held the office of: (i) Secretary; or (ii) Director-General of Social Security; or (iii) Director General of Social Services; or (b) is or has been an officer; purports to be attached or appended to any official document, the document is to be received in all courts as prima facie evidence of the facts and statements contained in it.(2) A statement in writing signed by a person referred to in subsection (1) that a person is or was receiving a social security payment under the social security law or the 1947 Act on a certain date at a certain rate is to be received in all courts as prima facie evidence that the person is or was receiving the social security payment on the date, and at the rate, stated.” It does not appear that it would be difficult for a certificate to be produced certifying that Ms Tivalu is an eligible New Zealand citizen. A series of AAT decisions suggest that this form of certificate is commonly requested and produced: see Re Ahmed v Secretary, Department of Family and Community Services (2005) 82 ALD 454 at [1]; Sanmugasundaram v Secretary, Department of Family and Community Services (2004) 86 ALD 315 at [3]; and Re Bhikha Patel and Secretary, Department of Family and Community Services [2004] AATA 791 at [3]. The Medicare card is plainly not a certificate. The Centrelink income statement does not appear to satisfy the requirements of a certificate. I accept the respondent’s submission that the applicant’s contention to the contrary is based upon a flawed logic, that is, the applicant reasons backwards by stating that because a person receives social security benefits the person is an Australian resident. The range of benefits open was not explored, but I accept that the person does not necessarily have to be an Australian resident to be entitled to Centrelink benefits. The legislation states that only Special Category visa (“SCV”) holders qualify as Australian residents and can access the full range of Centrelink payments, provided that they are currently living in Australia and satisfy certain rules, such as qualification criteria and relevant waiting periods. That is not to say that those who are not SCV holders are not also entitled to benefits, but as I have noted the detail of the benefits had not been explored. The fact remains that no material was put before the Tribunal appropriately addressing the certification requirement to establish that Ms Tivalu was an eligible New Zealand citizen. As I have noted, it would not have been a difficult thing to do had the applicant turned his mind to it. It follows that there is no basis to challenge the Tribunal’s conclusion at [17], where the Tribunal ultimately concluded that the matter had not been established. I am not satisfied that any error has been demonstrated in the Tribunal’s reasoning in coming to that conclusion, and, accordingly, no error enlivening a right to judicial review on this point has been established.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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