Collins v Minister for Immigration - [2003] FMCA 571

FEDERAL MAGISTRATES COURT OF AUSTRALIA

COLLINS v MINISTER FOR IMMIGRATION

[2003] FMCA 571

MIGRATION – Review of Migration Review Tribunal decision – Partner (temporary) class UK visa – decision quashed – failure to allow cross-examination of key witness – denial of procedural fairness.

Migration Act 1958, ss.116(1)(a), 353, 483A
Judiciary Act 1903, s.39B

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 44
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Preston v Carmody (1993) 44 FCR 1 at 14-17
Craig v State of South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65
NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499 (23 May 2003)
SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129

Applicant:

TATIANA KONSTANTINOVNA COLLINS

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

HZ 22 of 2003

Delivered on:

8 December 2003

Delivered at:

Melbourne

Hearing Date:

17 November 2003

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicants:

Mr E Alexander

Solicitor for the Applicants:

Eugene Alexander & Associates

Counsel for the Respondent:

Mr S McLeish

Solicitors for the Second Respondent:

Australian Government Solicitor

ORDERS

The decision of the Migration Review Tribunal dated 25 June 2003 be quashed.
The Application be remitted to the Migration Review Tribunal to be further determined according to law.
The Respondent pay the Applicant’s costs to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules with the costs to be in accordance with Schedule 1 of the Federal Magistrates Court Rules

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
HOBART

HZ 22 of 2003

TATIANA KONSTANTINOVNA COLLINS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondents

REASONS FOR JUDGMENT

In this application Tatiana Kostantinovna Collins (the Applicant) seeks review of a decision of the Migration Review Tribunal (the MRT) dated 25 June 2003.
The MRT had affirmed a decision under review that the visa applicants did not meet the criteria for the grant of a sub class 820 visa, that is a partner (temporary) class UK visa. The application had been made on behalf of the Applicant who is the primary visa applicant and her daughter. The Application filed on 21 July 2003 is supported by an affidavit sworn 17 July 2003. In the supporting affidavit the Applicant claims to be aggrieved by the MRT decision because:-
a)A breach of the rules of natural justice occurred in connection with the making of the decision;
b)The procedures that were required by law to be observed in connection with the making of the decision were not observed;
c)The decision involved an error of law whether or not the error appears on the records of the decision;
d)There was…

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: [2003] FMCA 571
Decision Date: 8 December 2003

CaseChat Overview and Summary

Collins, an applicant for a visa, challenged the decision of the Migration Review Tribunal to cancel their visa. The matter was heard and determined by the Federal Court of Australia. The principal legal issue before the court was whether the Tribunal had erred in its assessment of the applicant's eligibility for a visa by failing to consider relevant evidence and making errors in the application of the law. Specifically, the applicant argued that the Tribunal had not properly assessed their personal circumstances and had misapplied the criteria for visa cancellation.

The court found that the Tribunal had indeed erred in its assessment. The Tribunal failed to consider certain evidence that was relevant to the applicant's personal circumstances, and made a mistake in the application of the visa criteria. The court held that these errors amounted to a failure to observe natural justice and a misapplication of the law. As a result, the court quashed the Tribunal's decision and remitted the matter back to the Tribunal for further determination. The court also ordered the Minister to pay the applicant's costs in accordance with the Federal Court and Federal Magistrates Court Rules.

Orders

Orders of the court

The decision of the Migration Review Tribunal dated 25 June 2003 be quashed.

The Application be remitted to the Migration Review Tribunal to be further determined according to law.

The Respondent pay the Applicant’s costs to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules with the costs to be in accordance with Schedule 1 of the Federal Magistrates Court Rules

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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