Bas and East Street Upholstery v Minister for Immigration - [2004] FMCA 323

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BAS & EAST STREET UPHOLSTERY v MINISTER FOR IMMIGRATION

[2004] FMCA 323

MIGRATION – Application for judicial review of decision of the Migration Review Tribunal – nomination of business activity – Regulation 1.20G – prescribed form – tasks – varied occupation description – task of the MRT – consideration of material evidence – jurisdictional error – decision of MRT set aside.

Migration Act 1958 (Cth)
Judiciary Act 1903 (Cth)
Migration Regulations 1994 (Cth)

SDAO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 132
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1

Applicant:

FETHI BAS

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 526 of 2003

Delivered on:

21 May 2004

Delivered at:

Melbourne

Hearing Date:

14 May 2004

Judgment of:

Hartnett FM

Applicant:

EAST STREET UPHOLSTERY PTY LTD

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 527 of 2003

Delivered on:

21 May 2004

Delivered at:

Melbourne

Hearing Date:

14 May 2004

Judgment of:

Hartnett FM

REPRESENTATION

Counsel for the Applicants:

Mr Hurley

Solicitors for the Applicants:

Maria Scoutis

Counsel for the Respondent:

Ms MacDonnell

Solicitors for the Respondent:

Clayton Utz

THE COURT DECLARES THAT:

The decision of the Migration Review Tribunal made on 23 April 2003 is invalid and of no effect.

THE COURT ORDERS THAT:

The decision of the Migration Review Tribunal be set aside and the matter remitted to the Tribunal for hearing and determination in accordance with law.
The costs of the applicants be paid by the respondent as agreed or failing agreement as determined by this Court upon application made to it.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules2001 the Court certifies that it was reasonable for the parties to employ an advocate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 526 of 2003

FETHI BAS

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 527 of 2003

EAST STREET UPHOLSTERY PTY LTD

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

East Street Upholstery Pty Ltd made application to review under s.39B of the Judiciary Act 1903 (Cth) as provided in Part 8 of the Migration Act 1958 (Cth) by application filed 20 May 2003. Orders of certiorari, prohibition and mandamus were sought on the grounds as set out in paragraph 3 of that application. An amended application was filed on 26 August 2003 wherein a declaration was sought. In that application writs of prohibition and certiorari were also sought in relation to a decision of the Migration Review Tribunal (MRT) made on the

23 April 2003. The applicant claimed that the decision was made without jurisdiction or was affected by error of jurisdiction as particularised in paragraph 3.
Fethi Bas made application to review under s.39B of the Judiciary Act 1903 as provided in Part 8 of the Migration Act 1958 (Cth) by application…

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 Bas and East Street Upholstery v Minister for Immigration

Details

AGLC: Bas and East Street Upholstery v Minister for Immigration [2004] FMCA 323
Case: [2004] FMCA 323
Decision Date: 21 May 2004

CaseChat Overview and Summary

The Federal Court considered an appeal brought by Bas and East Street Upholstery against the Minister for Immigration. The applicants sought to challenge the decision of the Migration Review Tribunal which had rejected their application for a visa. The applicants argued that the Tribunal had not given proper consideration to their case and had overlooked significant evidence.

The legal issues before the Court were whether the Tribunal had erred in its consideration of the evidence presented and whether this constituted a failure to observe procedural fairness. The Court was also required to determine whether the Tribunal's decision was legally sound and whether it was open to the Tribunal to reach the conclusion that it did.

In delivering the judgment, the Court found that the Tribunal had indeed failed to properly consider the evidence presented by the applicants. The Court held that the Tribunal had overlooked significant information and had not given the applicants an opportunity to respond to certain matters. The Court concluded that this constituted a failure to observe procedural fairness and that the decision of the Tribunal was therefore unlawful. The Court set aside the decision of the Tribunal and remitted the matter back to the Tribunal for reconsideration. The Court also ordered that the costs of the applicants be paid by the respondent.

Orders

Orders of the court

The decision of the Migration Review Tribunal be set aside and the matter remitted to the Tribunal for hearing and determination in accordance with law.

The costs of the applicants be paid by the respondent as agreed or failing agreement as determined by this Court upon application made to it.

Pursuant to rule 21.15 of the

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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