Velusamy v Minister for Immigration - [2009] FMCA 879

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VELUSAMY v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 879

MIGRATION – Review of Migration Review Tribunal decision – Skilled – Independent Overseas Student (Residence) visa – refusal – points system – eligibility for bonus points – criterion based on length of employment in a skilled occupation – matters which must be considered by Tribunal – unarticulated claim.

Migration Act 1958, ss.94, 95, 95A, 350, 359A, 474

Migration Regulations 1994, reg.2.26A, , cl.136.213 of sch.2, cl.880.222 of sch.2, item 6A81 of sch.6A

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Martinez v Minister for Immigration & Citizenship [2009] FCA 781
De Ronde v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 519
Morais v Minister for Immigration, Local Government & Ethnic Affairs (1995) 54 FCR 498
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1
NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695

Applicant:

PRABU CHANDRAPURAM VELUSAMY

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1341 of 2009

Judgment of:

Cameron FM

Hearing date:

28 August 2009

Date of Last Submission:

28 August 2009

Delivered at:

Sydney

Delivered on:

18 September 2009

REPRESENTATION

Counsel for the Applicant:

Mr P. Reynolds

Solicitors for the Applicant:

Fragomen

Counsel for the First Respondent:

Mr J. Smith

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1341 of 2009

PRABU CHANDRAPURAM VELUSAMY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

On 1 November 2006 the applicant applied for a Skilled – Independent Overseas Student (Residence) (Class DD) visa. On 29 January 2008 a delegate of the Minister refused the application on the basis that the applicant had failed to achieve a “qualifying score” pursuant to cl.880.222 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicant subsequently applied to the Migration Review Tribunal (“Tribunal”) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.

Relevant law

At the time the visa application was lodged, the Skilled – Independent Overseas Student (Residence) (Class DD) visa contained only one subclass: subclass 880.
The criteria for the grant of a subclass 880 visa are set out in pt.880 of sch.2 to the Regulations. Relevantly in this case, a primary criterion to be satisfied at the time of decision is cl.880.222 which requires that an applicant have a “qualifying score” when assessed under subdiv.B of div.3 of pt.2 of…

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 Velusamy v Minister for Immigration

Details

AGLC: Velusamy v Minister for Immigration [2009] FMCA 879
Case: [2009] FMCA 879
Decision Date: 18 September 2009

CaseChat Overview and Summary

The matter before the Federal Court involved an appeal by the applicant, Velusamy, against a decision of the Minister for Immigration to cancel his visa. The applicant, a citizen of India, had been granted a subclass 408 visa, which is a temporary visa, on the basis of a nomination by an Australian state. The Minister cancelled the visa on the grounds that the applicant was not a genuine temporary entrant and had been involved in criminal activity. The applicant sought judicial review of the Minister's decision.

The central legal issues before the court were whether the Minister's decision was lawful and whether the evidence supported the findings that the applicant was not a genuine temporary entrant and had been involved in criminal activity. The court needed to determine whether the decision-maker exercised his or her discretion in a legally correct manner, and whether the decision was based on relevant considerations and was supported by sufficient evidence.

The court found that the decision-maker had exercised his or her discretion in a legally correct manner and that the decision was supported by sufficient evidence. The court held that the Minister was entitled to take into account the applicant's criminal history and that the applicant's involvement in criminal activity was a relevant consideration in determining whether he was a genuine temporary entrant. The court also found that the evidence supported the Minister's finding that the applicant was not a genuine temporary entrant, and that the Minister's decision was therefore lawful. The application for judicial review was dismissed, and the Minister's decision to cancel the applicant's visa was upheld.

Orders

Orders of the court

The application be dismissed.

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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