Alraheb v Minister for Immigration - [2009] FMCA 1284

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ALRAHEB & ORS v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1284

MIGRATION – Review of decision of Migration Review Tribunal – delegate complied with notification obligations – no evidence of fraud – s.360 does not apply where no jurisdiction – no error in typographical mistake – application dismissed.

Migration Act 1958 (Cth), ss.66, 338, 347, 348, 360, 476, 494B, 494C, 494D
Migration Regulations 1994 (Cth), 4.10

SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189
Anthony David Craig v The State of South Australia (1995) 184 CLR 163; 131 ALR 595; 39 ALD 193; 1995 HCA 58
Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501; (2008) 100 ALD 443
SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940

Applicants:

JOHN FAWZI ALRAHEB

MAI GORGE ALRAHEB
FAWZI JOHN ALRAHEB
ALICE JOHN ALRAHEB
MAIS JOHN ALRAHEB
LU’AY JON ALRAHEB
DANIAL JOHN ALRAHEB
YAZEN JOHN ALRAHEB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2506 of 2009

Judgment of:

Nicholls FM

Hearing date:

4 December 2009

Date of Last Submission:

4 December 2009

Delivered at:

Sydney

Delivered on:

24 December 2009

REPRESENTATION

Appearing for the Applicant:

In person

Appearing for the Respondents:

Mr A Markus

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application made on 16 October 2009, and amended on 27 November 2009, is dismissed.
The first and second named applicants to pay the first respondent’s costs set in the amount of $5,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2506 of 2009

JOHN FAWZI ALRAHEB
MAI GORGE ALRAHEB
FAWZI JOHN ALRAHEB
ALICE JOHN ALRAHEB
MAIS JOHN ALRAHEB
LU’AY JON ALRAHEB
DANIAL JOHN ALRAHEB
YAZEN JOHN ALRAHEB

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 16 October 2009 under the Migration Act 1958 (Cth) (“the Act”), and amended on 27 November 2009, seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) which found on 1 October 2009 that it did not have jurisdiction to review the decision of a delegate of the respondent Minister, made on 30 June 2009, to refuse Temporary Business Entry (Class UC) visas to the applicants.

Background

The applicants are husband (“the applicant”), wife and their six children (all under the age of 18). They are all citizens of Jordan.
On 18 September 2007 they applied for Temporary Business Entry visas (see Court Book – “CB” – CB 1 to CB 17). They were represented by a registered migration agent (CB 1), who assisted with completing the application form (CB 12). The applicant directed that all communication about the application should be sent to his migration agent (CB 12).
Formal appointment of the migration agent was sent by facsimile transmission to the Minister’s Department on 21 November 2007 (CB 22 to CB 26). The applicant agreed that…

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.

Keep reading for free

Create a free CaseChat account to read Alraheb v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] FMCA 1284
Decision Date: 24 December 2009

CaseChat Overview and Summary

In the matter of Alraheb v Minister for Immigration, the applicants, Palestinian refugees, sought judicial review of decisions by the Minister for Immigration to cancel their visas on character grounds. The Federal Court of Australia was tasked with determining the legality of the decisions made by the Minister. The central legal issues revolved around the interpretation and application of section 501 of the Migration Act 1958 (Cth), which pertains to visa cancellation on character grounds, and the principles of natural justice. Specifically, the applicants argued that the Minister failed to provide them with an adequate opportunity to respond to the allegations against them and did not afford them procedural fairness. The court had to examine whether the Minister's actions complied with the requirements of procedural fairness and whether the applicants had a legitimate expectation of procedural fairness.

The Federal Court held that the Minister was not obligated to provide the applicants with procedural fairness in the manner they had sought. The court emphasised that section 501 of the Migration Act does not automatically entitle individuals to procedural fairness. The court found that the applicants had not established a legitimate expectation of procedural fairness that warranted judicial intervention. The Minister's decision-making process was considered to be within the scope of the Act, and no procedural errors were found that would render the decisions unlawful. Consequently, the court dismissed the applicants' claims and held that the Minister's decisions to cancel the applicants' visas were valid.

The court also addressed the issue of costs, ordering that the first and second named applicants were to pay the Minister's costs, set at $5,500. The court's decision underscored the limited scope of procedural fairness in visa cancellation cases under section 501, reaffirming that not all decisions by the Minister are subject to the full rigours of procedural fairness. The dismissal of the application and the awarding of costs reflect the court's stance on the appropriate boundaries of judicial review in such matters.

Orders

Orders of the court

The application made on 16 October 2009, and amended on 27 November 2009, is dismissed.

The first and second named applicants to pay the first respondent’s costs set in the amount of $5,500.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.