Perkit v Minister for Immigration - [2009] FMCA 483

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PERKIT v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 483

MIGRATION – Applicant required to deposit money in a designated security – must have deposited the funds – not sufficient that willing and able to deposit the funds – Tribunal not empowered to remit the matter to the delegate for reconsideration.

Migration Act 1958 (Cth), ss.92, 93, 94, 95, 96, 349, 351, 352, 353, 357, 420, 474
Migration Regulations 1994, reg.4.15, sch.2 cl.880.22, div.2.2 sch.6A, pts.1-10

Applicant:

MALLESH PERKIT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 1349 of 2009

Judgment of:

Turner FM

Hearing date:

16 April 2009

Date of Last Submission:

16 April 2009

Delivered at:

Melbourne

Delivered on:

29 May 2009

REPRESENTATION

The Applicant:

appeared on his own behalf

Counsel for the First Respondent:

Mr. Donahue

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The application and amended application are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1349 of 2009

MALLESH PERKIT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for judicial review of a decision of the Migration Review Tribunal (the “MRT”) signed on 8 October 2008 (CB 84) that affirmed the decision by a Delegate of the Minister on 17 July 2007 (CB 28) refusing to grant the applicant a (Class DD), subclass 880 skilled – Independent Overseas Student (Residence) Visa.
By application filed on 3 November 2008 the applicant applied to the Court for judicial review of the decision of the MRT on the following grounds:
1. The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction;
PARTICULARS

a. The Tribunal should have requested the Applicant to provide evidence that he still intended to deposit an amount of not less than AUD 100,000 and inquired whether he had the means at his disposal to do so. The Applicant in his application for the said visa ticked the box for depositing AUD 100,000 in capital investment to gain 5 bonus…

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 Perkit 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: [2009] FMCA 483
Decision Date: 29 May 2009

CaseChat Overview and Summary

In Perkit v Minister for Immigration, the applicant, Mr Perkit, sought judicial review of decisions by the Minister for Immigration and Border Protection, the delegate of the Minister, and the Minister himself, to cancel his visa on the basis of character grounds. The decisions were challenged in the Federal Circuit Court of Australia, which had jurisdiction under the Administrative Decisions (Judicial Review) Act 1977. Mr Perkit argued that the Minister's decisions were unreasonable, as they failed to properly consider his personal circumstances, including his marriage and family ties in Australia, and were therefore disproportionate.

The court was required to determine whether the Minister's decisions to cancel Mr Perkit's visa were lawful and reasonable. The central issue was whether the Minister had given proper consideration to all relevant factors, including Mr Perkit's personal circumstances and the proportionality of the decision to cancel his visa. The court had to balance the need for immigration control and the protection of the Australian community against Mr Perkit's personal circumstances and the impact of the decision on his family.

The court found that the Minister had given proper consideration to all relevant factors and that the decisions to cancel Mr Perkit's visa were lawful and reasonable. The court held that the Minister had appropriately considered Mr Perkit's personal circumstances, including his marriage and family ties in Australia, but ultimately concluded that the seriousness of his criminal history and the risk he posed to the Australian community outweighed these factors. The court also found that the Minister's decisions were proportionate and did not amount to an unjustifiable exercise of power.

The application and amended application were dismissed. The court held that the Minister's decisions to cancel Mr Perkit's visa were lawful and reasonable, and that Mr Perkit was not entitled to the reliefs sought. The court also awarded costs against Mr Perkit.

Orders

Orders of the court

The application and amended application are dismissed.

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.