Alin v Minister for Immigration & Multicultural Affairs - [2002] FCA 979

FEDERAL COURT OF AUSTRALIA
Alin v Minister for Immigration & Multicultural Affairs [2002] FCA 979
Migration Act 1958 ss 65(1), 474
Migration Regulations, regs 1.15(1) and (1A), 1.21(1), 1.23, 1.24(1), 1.25, 1.26, Sch 2 clauses 801.221(2) and (6)
Doan v Minister for Immigration and Multicultural Affairs [2000] FCA 909 cited
Malik v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 291 cited
NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263 cited
NABE v Minister for Immigration and Multicultural Affairs [2002] FCA 281 cited
NAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 cited
Turcan v Minister for Immigration and Multicultural Affairs [2002] FCA 397 cited
Boakye‑Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438 cited
Kwan v Minister for Immigration and Multicultural Affairs [2002] FCA 498 cited
Craig v South Australia (1995) 184 CLR 163 at 179 cited
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 cited
Du v Minister for Immigration and Multicultural Affairs [2000] FCA 1115 approved
Meroka v Minister for Immigration and Multicultural Affairs [2002] FCA 482 considered
Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343
ABADIR FARAH ALIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V 1076 OF 2001
SUNDBERG J
7 AUGUST 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 1076 OF 2001

BETWEEN:

ABADIR FARAH ALIN
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

SUNDBERG J

DATE OF ORDER:

7 AUGUST 2002

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.        The application be dismissed.
2.        The applicant pay the respondent’s costs of the application.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 1076 OF 2001

BETWEEN:

ABADIR FARAH ALIN
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

SUNDBERG J

DATE:

7 AUGUST 2002

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
BACKGROUND

The applicant is a national of the United States of America. He was born in Saudi Arabia in 1957 and was raised in Somalia. He applied for a General (Residence) (Class AS) visa, Subclass 801 (Spouse) (“the spouse visa”). The application was refused by the respondent’s delegate. The applicant applied to the Migration Review Tribunal for review of the delegate’s decision. The Tribunal affirmed the decision, and the applicant has applied to the Court for review of the Tribunal’s decision under Part 8 of the Migration Act 1958 (“the Act”). The application to the Court was filed after the new Part 8 of the Act introduced by the Migration Legislation Amendment (Judicial Review) Act 2001 came into operation, and accordingly is to be dealt with under the new provisions.
LEGISLATION
Section 65(1) of the Act provides in part that
“After considering a valid application for a visa, the Minister:
(a)if satisfied that:
(i)the health criteria for it (if any) have been satisfied; and
(ii)the…

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.

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Details

Case: [2002] FCA 979
Decision Date: 7 AUGUST 2002

CaseChat Overview and Summary

In the case of Alin v Minister for Immigration & Multicultural Affairs, the applicant, who had entered Australia on a visitor visa, sought a spouse visa based on his marriage to Amina Adan Gabas. However, the Department of Immigration and Multicultural Affairs refused his application, leading to a legal dispute over the validity of the visa denial. The primary legal issues the court had to address were whether the Tribunal's decision to dismiss the applicant's visa application was correct, and whether any error made by the Tribunal could have influenced the outcome.

The court found that the Tribunal had correctly decided that the applicant was not entitled to a visa as he was no longer in a spousal relationship with the sponsor. The definition of "spouse" under regulation 1.15A(1A) was not met since the relationship had irretrievably broken down. The court further held that any potential error by the Tribunal did not affect the outcome, as the applicant's lack of a spousal relationship with the sponsor was the primary reason for the visa denial. The court cited Craig v South Australia and Minister for Immigration and Multicultural Affairs v Thiyagarajah as precedents supporting its decision.

Based on its findings, the court concluded that the application must be dismissed. The applicant's argument did not alter the fundamental issue of his relationship status, which was critical for the visa grant. The court also exercised its discretion not to remit the matter to the Tribunal, finding it pointless given the clear reasons for the refusal. The final orders included dismissing the application and directing the applicant to pay the respondent's costs.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs of the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Division 1.5 of the Regulations contains Special Provisions Relating to Domestic Violence. Regulation 1.23(1) provides in part that:“For the purpose of these Regulations:(a)a person (‘the alleged victim’) is taken to have suffered domestic violence; and(b)another person (‘the alleged perpetrator’) is taken to have committed domestic violence in relation to the alleged victim;if:…(g)if the alleged victim is a person referred to in subregulation (2) – the alleged victim or another person on the alleged victim’s behalf presents evidence in accordance with regulation 1.24 that:(i)the alleged victim has suffered relevant domestic violence; and(ii)the alleged perpetrator has committed that relevant domestic violence.A spouse of the alleged perpetrator is one of the persons referred to in subregulation (2). Regulation 1.24(1) provides in part that:“The evidence referred to in paragraph 1.23(1)(g) is:…(c)a statutory declaration under regulation 1.25, together with two statutory declarations under regulation 1.26.”Regulation 1.25 deals with a declaration by the spouse of the alleged victim. Regulation 1.26 is as follows:“A statutory declaration under this regulation:(a)must be made by a competent person; and(b)must set out the basis of the competent person’s claim to be a competent person for the purposes of this Division; and(c)must state that, in the competent person’s opinion, relevant domestic violence (within the meaning of paragraph 1.23(2)(b)) has been suffered by a person; and(d)must name the person who, in the opinion of the competent person, has suffered that relevant domestic violence; and(e)must name the person who, in the opinion of the competent person, committed that relevant domestic violence; and(f)must set out the evidence on which the competent person’s evidence is based.”Regulation 1.23(2)(b) provides:“A reference to relevant domestic violence is a reference to violence against the alleged victim or his or her property that causes the alleged victim, or a member of the alleged victim’s family, to fear for, or to be apprehensive about, the alleged victim’s personal well‑being or safety.”The word “violence” includes a threat of violence. The expression “competent person” is defined in reg 1.21(1) to include a registered medical practitioner and a registered psychologist.EVIDENCE BEFORE TRIBUNAL The applicant entered Australia in July 1998 on a visitor visa. In August 1998 he married Amina Adan Gabas (the sponsor). On 8 September 1998 the applicant lodged an application for a spouse visa based on his marriage. On 12 November 1998 he was granted a temporary subclass 820 spouse visa. On 26 September 2000 the Department was advised by the sponsor that the relationship between the sponsor and the applicant was no longer continuing and had irretrievably broken down on 1 September 2000. In refusing the spouse visa the delegate stated that since the applicant and the sponsor were not in a spousal relationship, the requirements in reg 1.15A were not met. See the definition of “spouse” in reg 1.15A(1A).

Decision

Reasons for decision

SUNDBERG J

For the foregoing reasons, any assumed error by the Tribunal could not have affected its decision that the applicant was not entitled to a visa. Cf Craig v South Australia at 179 and Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 at 350. For the same reasons it would have been pointless to have remitted the matter to the Tribunal. In the exercise of my discretion I would not have done so.CONCLUSION The application must be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: SUNDBERG J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1076 OF 2001

BETWEEN:	ABADIR FARAH ALIN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SUNDBERG J
DATE OF ORDER:	7 AUGUST 2002
WHERE MADE:	MELBOURNE

JUDGE:	SUNDBERG J
DATE:	7 AUGUST 2002
PLACE:	MELBOURNE