ALSALEM v Minister for Immigration - [2013] FCCA 1407

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALSALEM v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1407

Catchwords:
MIGRATION – Partner visa – review of Migration Review Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it failed to consider whether the applicant had suffered family violence.

Legislation:

Migration Act 1958, ss.5F, 474

Migration Regulations 1994, reg.1.15A, cls.820.211, 820.221 of sch.2

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant:

MOHAMMAD ALSALEM

First Respondent:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2870 of 2012

Judgment of:

Judge Cameron

Hearing date:

17 September 2013

Date of Last Submission:

17 September 2013

Delivered at:

Sydney

Delivered on:

24 September 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2870 of 2012

MOHAMMAD ALSALEM

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, who is a citizen of Jordan, applied for a Partner (Temporary) (Class UK) subclass 820 visa on 2 October 2009. On 17 December 2010 his application was refused by a delegate of the first respondent (“Minister”) on the basis that he did not satisfy the requirements of cl.820.211 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicant 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 cannot rehear the applicant’s application for a visa. Its 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 legislation

The criteria for the grant of a subclass 820 visa are set out in pt.820 of sch.2 to the Regulations. One of the criteria which the applicant had to satisfy at the time he made his application was cl.820.211 which relevantly provided:
(2) An applicant meets the requirements of this subclause if:
(a)the applicant is the spouse or de facto partner of a person who:
(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen …
“Spouse” has the meaning given to it by s.5F of the Act which provides:
5F Spouse
(1)For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.
(2)For the purposes of subsection (1), persons are in a married relationship if:
(a)they are married to each other under a marriage that is valid for the purposes of this Act; and
(b)

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: [2013] FCCA 1407
Decision Date: 24 September 2013

CaseChat Overview and Summary

In ALSALEM v Minister for Immigration, the applicant sought judicial review of a decision by the Migration Review Tribunal. The Tribunal had affirmed the Minister's refusal to grant the applicant a partner visa. The applicant contended that the Tribunal's decision was affected by jurisdictional error due to its alleged failure to consider whether the applicant had experienced family violence.

The central legal issue before the Court was whether the Tribunal had failed to consider a relevant consideration, specifically the applicant's alleged experience of family violence, when reviewing the refusal of the partner visa. This raised the question of whether such a failure constituted a jurisdictional error that vitiated the Tribunal's decision.

Justice Cameron reasoned that the Tribunal's review of a partner visa application, particularly where family violence is raised as a factor, requires a proper consideration of all relevant circumstances. The Court found that the Tribunal's decision-making process, as evidenced in its reasons, did not demonstrate a sufficient engagement with the applicant's claims of family violence. This omission was determined to be a failure to consider a relevant consideration, amounting to jurisdictional error.

Consequently, the Court ordered that the Tribunal's decision be set aside.

Orders