Awad v Minister for Immigration - [2015] FCCA 1381

FEDERAL CIRCUIT COURT OF AUSTRALIA

AWAD v MINISTER FOR IMMIGRATION

[2015] FCCA 1381

Catchwords:

MIGRATION – Applicant granted child visa – applicant engaged to be married at time of visa application – applicant did not indicate on visa application form that she was “engaged to be married” – cancellation of visa because of bogus documents or incorrect information.

ADMINISTRATIVE LAW – Review of decision of delegate of the Minister – allegation that the delegate’s decision affected by jurisdictional error – whether the delegate erred in his interpretation of the term “engaged to be married” – whether the delegate misunderstood the discretion whether to cancel the applicant’s visa – whether the delegate had the power to cancel the applicant’s visa under sub-s.116(1)(d) of the Migration Act 1958 (Cth) because the applicant was not a person who had “entered” Australia – no jurisdictional error – application dismissed.

Legislation:

Acts Interpretation Act1901 (Cth), s.36(2)

Migration Act 1958 (Cth), ss.5, 109, 116, 128, 501

Migration Legislation Amendment Act (No. 1)1998 (Cth)
Migration Regulations 1994 (Cth), cl.101.213(1)(a)(i) of sch.2

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Cheaib v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 308
Chief Commissioner of State Revenue v Qantas Airways Ltd (2009) 74 NSWLR 181
Doukmak v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 432
Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2015] HCA 10
Ross v Minister for Immigration and Multicultural Affairs (2000) 107 FCR 1
Singh v Minister for Immigration and Multicultural Affairs [2006] FMCA 1163

Applicant:

REHAB AHMED MAHMOUD AWAD

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

SYG 2377 of 2014

Judgment of:

Judge Smith

Hearing date:

26 March 2015

Date of Last Submission:

1 April 2015

Delivered at:

Sydney

Delivered on:

28 May 2015

REPRESENTATION

Solicitor for the Applicant:

Mr M. Jones, Parish Patience Immigration Lawyers

Counsel for the Respondent:

Mr B. Kaplan

Solicitors for the Respondent:

Minter Ellison

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2377 of 2014

REHAB AHMED MAHMOUD AWAD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of a delegate of the respondent made on 20 July 2014 to cancel the applicant’s Class AH subclass 101 Child visa.

Background

The applicant is a citizen of Egypt. On 16 February 2010 she applied for a Class AH subclass 101 visa. She was at that time 20 years-old. It was a criterion for the grant of that visa that an applicant who was 18 years and over “is not engaged to be married”: sub-cl.101.213(1)(a)(i) of sch.2 to the Migration Regulations 1994 (“Regulations”). In her application, in response to a question asking for her relationship status, a tick was placed in the box next to the words “never married or been in a de facto relationship” and no tick or other marking was placed in the box next…

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: [2015] FCCA 1381
Decision Date: 28 May 2015

CaseChat Overview and Summary

In *Awad v Minister for Immigration*, heard before Judge Smith, the applicant, who had been granted a child visa, sought judicial review of the Minister's decision to cancel that visa. The cancellation was based on the applicant's alleged provision of incorrect information or bogus documents in her visa application, specifically concerning her marital status. At the time of her application, the applicant was engaged to be married but had not indicated this fact on the visa application form.

The central legal issues before the court were whether the delegate of the Minister had erred in their interpretation of the term "engaged to be married" and whether the delegate had misunderstood the scope of their discretion in deciding whether to cancel the applicant's visa. Furthermore, the court was asked to consider whether the delegate possessed the power to cancel the visa under s 116(1)(d) of the *Migration Act 1958* (Cth) on the basis that the applicant had not "entered" Australia.

Judge Smith found no jurisdictional error in the delegate's decision. The court determined that the delegate's interpretation of "engaged to be married" was not erroneous and that the delegate had properly understood and exercised their discretion regarding visa cancellation. The court also concluded that the delegate had the power to cancel the visa under the relevant provision of the Act. Consequently, the application for judicial review was dismissed.

Orders