Rao v MIMA

[1998] FCA 193

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - Appeal from Immigration Review Tribunal decision affirming decision to refuse grant of a Class 816 (special (permanent)) or a Class 818 (highly qualified on-shore (permanent)) entry permit - whether applicant had been enrolled in an accredited course leading to a trade certificate - meaning of “leading to” - whether error of law - whether failure by Tribunal to make adequate enquiries - whether breach of the procedures required to be observed.

Administrative Decisions (Judicial Review) Act 1977 (Cth) Schedule 1, par (e)
Migration Act 1958 (Cth) ss 420, 476(1)(a), 476(1)(e)
Migration Regulations par 816.721(2)(c)

Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126, refd
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, refd
Deputy Commissioner of Taxation v Clarke & Kann (1984) 1 FCR 322, appl
New South Wales Associated Blue-Metal Quarries Ltd v Commissioner of Taxation (1956) 94 CLR 509, refd
Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6, refd
Waterford v Commonwealth (1986) 163 CLR 54, refd

GANESH RAO & ORS v
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
NG 1036 of 1996

DAVIES J
6 MARCH 1998
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1036  of   1996

BETWEEN:

GANESH RAO
FIRST APPLICANT

ZAHIDA BEGUM RAO
SECOND APPLICANT

ELISHA SONAL RAO
THIRD APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

DAVIES J

DATE OF ORDER:

6 MARCH 1998

WHERE MADE:

SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

The application be dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1036 of 1996

BETWEEN:

GANESH RAO
FIRST APPLICANT

ZAHIDA BEGUM RAO
SECOND APPLICANT

ELISHA SONAL RAO
THIRD APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:	DAVIES J
DATE:	6 MARCH 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an appeal from a decision of an Immigration Review Tribunal given on 29 November 1996 in which the Tribunal rejected the claims made by the applicants that Mr Ganesh Rao was entitled to a Class 816 (special (permanent)) entry permit or a Class 818 (highly qualified on-shore (permanent)) entry permit and that his spouse, Mrs Zahida Begum Rao and his daughter, Miss Elisha Sonal Rao, were entitled to visas accordingly. The appeal is brought under s 476 of the Migration Act 1958 (Cth) ("the Act"). Many heads of claim were pressed before the Tribunal but only one is relied upon in this proceeding.

Paragraph 816.721(2)(c) of the Migration Regulations provides:

"(2)An applicant meets the requirements of this subclause if, on 1 November 1993:

...

(c)       the applicant:

(i)had been enrolled during the 1993 academic year in an accredited course leading to a trade certificate advanced certificate, associate diploma, diploma, degree or higher degree; and

(ii)had met the academic progress requirements of the institution at which he or…