Arango v Minister for Immigration - [2003] FMCA 167

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ARANGO & ORS v MINISTER FOR IMMIGRATION

[2003] FMCA 167

MIGRATION – Review of decision of the Migration Review Tribunal affirming a decision of a delegate of the Minister refusing to grant a Family (Residence) (Class AO) Visa, subclass 806 – no reviewable error disclosed – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.475A, 477, 478, 479, 499, 474
Migration Regulations 1994 (Cth), cl 806.21, cl 806.213, cl 806.22
Migration Amendment Regulations 1999 (No.13)
Federal Court Rules
Migration Amendment Regulations 1999 (No.13)
Statutory Rules 1999, No.259, reg 4 and Sch 2 par 2351

Plaintiff S157/2002 v Commonwealth of Australia (2003) HCA 2
Craig v South Australia (1995) 184 CLR 163
R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598
Wu Shan Liang v Minister for Immigration & Multicultural & Indigenous Affairs (1996) 185 CLR 259
Jun v Minister for Immigration & Multicultural Affairs (2000) FCA 867
Ratumaiwai v Minister for Immigration & Multicultural Affairs [2002] FCA 311
Jackson v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 225

Applicant 1:	LUIS ALBEIRO RESTREPO ARANGO
Applicant 2:	LUCELLY WAGNER DAZZA
Applicant 3:	JULIAN RESTREPO WAGNER
Applicant 4:	MAURO ANDRES RESTREPO WAGNER

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ922 of 2002

Delivered on:

9 May 2003

Delivered at:

Bendigo

Hearing Date:

2 May 2003

Judgment of:

Hartnett FM

REPRESENTATION

Counsel for the Applicants:

Mr Gibson

Solicitors for the Applicants:

Ersking Rodan & Associates

Counsel for the Respondent:

Mr Fairfield

Solicitors for the Respondent:

Clayton Utz

ORDER

The Application is dismissed.
The Applicant pay the Respondents’ costs pursuant to the Federal Magistrates Court Rules 2001 Part 21 Rule 21.10.
It is certified that pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001 this matter reasonably required the attendance of counsel as advocate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ922 of 2002

LUIS ALBEIRO RESTREPO ARANGO

LUCELLY WAGNER DAZZA

JULIAN RESTREPO WAGNER

MAURO ANDRES RESTREPO WAGNER

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This matter was transferred to this Court by order made in the Federal Court of Australia on 6 September 2002 by Marshall J. The matter was transferred pursuant to O.82 of the Federal Court Rules.
The applicants filed an application for an order to review on the 16^th of July 2002. That application was amended by amended application filed the 17^th of December 2002. The application is made pursuant to s.39B of the Judiciary Act 1903 (Cth) and ss.475A, 477, 478 and 479 of the Migration Act 1958 (Cth) (“the Act”) for writs of prohibition and certiorari and for a declaration in relation to a decision of the Migration Review Tribunal (MRT) made on 11 June 2002 to affirm a decision of the delegate of the Minister to refuse the applicants a Family (Residence) (Class AO) visa. The particulars of the claim are as set out in…

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.

Continue reading Arango v Minister for Immigration

Details

AGLC: Arango v Minister for Immigration [2003] FMCA 167
Case: [2003] FMCA 167
Decision Date: 9 May 2003

CaseChat Overview and Summary

The Federal Magistrates Court of Australia dealt with an application by Luis Arango and others against the Minister for Immigration & Multicultural & Indigenous Affairs regarding the refusal of a Family (Residence) (Class AO) visa. The applicants sought a review of the decision of the Migration Review Tribunal (MRT) which affirmed the delegate's refusal to grant the visa. The legal issues revolved around whether the MRT had made a jurisdictional error in its assessment of the applicants' eligibility for the visa under the Migration Regulations, specifically the definition of 'special need relative'. The applicants argued that the MRT failed to properly consider their need for emotional support and that the Tribunal had applied an incorrect legal test.

The court examined whether the MRT had considered the applicants' claims properly and whether it had applied the correct legal standards. The MRT had found that the nominator did not have a permanent or long-term need for assistance, which was a requirement for the visa. The court held that the MRT had indeed considered the emotional support claims and had reached a factual conclusion that the need for such support did not satisfy the statutory requirements. The court found no jurisdictional error as the Tribunal had correctly applied the relevant legal standards and had made factual findings open to it.

The court concluded that the MRT's decision was a privative clause decision and thus not subject to merits review. The application for review was dismissed, and the applicants were ordered to pay the respondent's costs.

Orders