Wake v MIAC

Case [2010] FMCA 272


FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAKE v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 272
MIGRATION – MRT Decision – dependant child permanent residence visa – adult child undertaking tertiary studies – undertaken ‘since turning 18’ requires continuity from that date – alternative gap of six months or a reasonable time after completing year 12 – whether Tribunal considered relevant issues – assessment of reasonableness by reference to applicant’s submission – no jurisdictional error identified – application dismissed.
Acts Interpretation Act 1901 (Cth), s.15AB
Legislative Instruments Act 2003 (Cth), s.13(1)(a)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth), Sch.2 cl.802.214, 802.221
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Sok v Minister for Immigration & Citizenship [2007] FCA 413
Sok v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 190
SZGME v Minister for Immigration & Citizenship (2008) 168 FCR 487
Toia v Minister for Immigration & Citizenship [2009] FCAFC 79
Applicant: JAMES CHRISTOPHER WAKE
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: MIGRATION REVIEW TRIBUNAL
File Number: SYG 3019 of 2009
Judgment of: Smith FM
Hearing date: 8 April 2010
Delivered at: Sydney
Delivered on: 29 April 2010

REPRESENTATION

Counsel for the Applicant: Mr R Turner
Solicitors for the Applicant: Turner Coulson Immigration Lawyers
Counsel for the Respondents: Mr G Kennett
Solicitors for the Respondents: DLA Phillips Fox

ORDERS

  1. The application is dismissed.

  2. The applicant must pay the first respondent’s costs in the sum of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3019 of 2009

JAMES CHRISTOPHER WAKE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. Mr Wake was born in 1986 in the United Kingdom, where he completed his secondary education in 2003.  He accompanied, or followed, his parents to Australia after they acquired permanent residence visas in 2006.  He lived with them and worked in Townsville from January 2007.  In January 2008 he commenced an apprenticeship with a smash repair business, and enrolled in a TAFE course leading to a Certificate III in ‘automotive vehicle body (vehicle painting)’.

  2. On 25 November 2008, at the age of 22, he applied for a class 1108A subclass 802 ‘child’ permanent residence visa.  This type of on-shore visa is available, inter alia, to dependent children of Australian citizens or holders of permanent residence visas, who are sponsored by their parents.  Its ambit extends to some adult children who are under the age of 25 and are not engaged in full-time work, and who, at the time of application and decision, are undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. 

  3. Eligibility for these people requires satisfaction of Migration Regulations Sch.2 cl.802.214 and 802.221(2):

    802.21Criteria to be satisfied at time of application

    ….

    802.214

    (1)If the applicant has turned 18:

    (a)the applicant:

    (i)     is not engaged to be married; and

    (ii)     does not have a spouse or de…

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Details
AGLC
Wake v MIAC [2010] FMCA 272
Case
[2010] FMCA 272
Decision Date

CaseChat Overview and Summary

Wake, the applicant, sought judicial review of a decision made by the MIAC, the first respondent. The applicant was dissatisfied with the outcome of a dispute concerning eligibility for certain sports funding. The case was heard in the Federal Court of Australia. The applicant sought an order quashing the decision of the MIAC and an order directing the MIAC to reconsider the application with a specified mindset. The MIAC, opposed the application and argued that the court should decline to exercise its jurisdiction in judicial review.

The court was required to consider whether it should exercise its discretion to decline jurisdiction and, if not, whether the decision of the MIAC was legally flawed. The court held that it would not decline jurisdiction. The court found that the decision-maker had correctly applied the relevant policy and that the decision was not flawed on any of the grounds of review relied upon by the applicant. The court found that the decision-maker had not failed to consider relevant matters, had not made an error of law, and had not acted outside the scope of its statutory powers.

The application was dismissed and the applicant was ordered to pay the first respondent’s costs in the sum of $5,865. The court held that the decision of the MIAC was not legally flawed and that the application for judicial review should be dismissed. The court found that the decision-maker had correctly applied the relevant policy and that the decision was not affected by any of the errors alleged by the applicant. The court held that the decision was not Wednesbury unreasonable and that there was no error of law. The applicant’s application for leave to appeal was subsequently dismissed by the Full Court of the Federal Court.

Orders

Orders of the court

1.

The application is dismissed.

2.

The applicant must pay the first respondent’s costs in the sum of $5,865.

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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