Abassi v Minister for Immigration

[2018] FCCA 2690

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABASSI & ANOR v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2690

Catchwords:
MIGRATION – Administrative Appeals Tribunal – partner (provisional) (class UF) (subclass 309) visa – applicants providing bogus documents or documents that were false or misleading in a material particular to the Minister – whether the Tribunal erred in its consideration of whether to waive the requirements of public interest criterion 4020(1) – whether the Tribunal considered whether there were compelling circumstances affecting the interests of an Australian citizen – whether the Tribunal was obliged to consider s.34 of the Australian Citizenship Act 2007 in determining whether to waive the requirements of public interest criterion 4020(1) – whether the Tribunal made an irrational decision – whether the Tribunal considered all required matters.

Legislation:
Australian Citizenship Act 2007, s.34

Criminal Code Act 1995, ss.134.1, 134.2, 135.1, 135.2, 135.4, 136.1

Migration Regulations 1994, criterion 4020 of Schedule 4

Cases cited:

Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; (1986) 10 ALN N109; (1986) 66 ALR 299; (1986) 60 ALJR 560; [1986] HCA 40
Mohamed v Minister for Immigration and Border Protection [2016] FCCA 3231
Victoria v Commonwealth (Kakariki/Shipwrecks case) (1937) 58 CLR 618; [1938] ALR 97; (1937) 11 ALJR 344a

First Applicant: NAJIBULLAH ABASSI

Second Applicant: AZIZA HASSANI

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 1539 of 2016

Judgment of: Judge Riley

Hearing date: 22 June 2018

Date of last submission: 22 June 2018

Delivered at: Melbourne

Delivered on: 21 September 2018

REPRESENTATION

Counsel for the applicants: Angel Aleksov

Solicitors for the applicants: FCG Legal

Counsel for the first respondent:	Nick Wood
Counsel for the second respondent:	No appearance

Solicitors for the respondents: Sparke Helmore

ORDERS

1. The application filed on 20 July 2016 and amended on 22 February 2017 be dismissed.

2. The applicants pay the first respondent’s costs of the proceeding fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 1539 of 2016

NAJIBULLAH ABASSI

First applicant

And

AZIZA HASSANI

Second applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Administrative Appeals Tribunal.  In that decision, the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant the second applicant a partner (provisional) (class UF) (subclass 309) visa. 

2. The first applicant is the husband of the second applicant.  Before the Tribunal, there was a third applicant, Ramazan Ali Abbasi, born on 5 May 2006, who is the son of the first and second applicants.  However, there was no attempt for the son to be made a party to these proceedings.

3. The first applicant was granted a subclass 117 orphan relative visa on 8 May 2007.…