DANESHPOUR v Minister for Immigration - [2020] FCCA 879

FEDERAL CIRCUIT COURT OF AUSTRALIA

DANESHPOUR v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 879

Catchwords:
MIGRATION – Partner visa application – where Tribunal affirmed delegate’s decision to refuse visa – whether Tribunal misapplied PAM3 criteria – whether failure by Tribunal to discharge its core function of review – whether failure to undertake cumulative assessment of all circumstances of application – Tribunal failed to consider reasons as a whole – application for judicial review allowed – decision quashed – application referred back to make decision according to law.

Legislation:

Federal Circuit Court of Australia Act1999 (Cth), ss.67, 68
Migration Act 1958 (Cth), s.65
Migration Regulations 1994 (Cth), Sch.2, cl.820.211(2)(d)(ii), Sch.3, Items 3001, 3003, 3004

Cases cited:

Applicant:

NAVID DANESHPOUR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 1947 of 2018

Judgment of:

Judge Kelly

Hearing date:

2 April 2020

Date of Last Submission:

2 April 2020

Delivered at:

Melbourne

Delivered on:

23 April 2020

REPRESENTATION

Counsel for the Applicant:

Mr M. Kenneally

Solicitors for the Applicant:

Lawson Bayly

Counsel for the Respondents:

Ms J. Lucas

Solicitors for the Respondents:

Mills Oakley

THE COURT ORDERS THAT:

By consent, pursuant to ss.67-68 of the Federal Circuit Court of Australia Act1999 (Cth), direct that the parties be allowed to appear and to make submissions before the Court via audio link.
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
By consent, the applicant have leave, now for then, to file the amended application filed on 19 March 2020.
The amended application filed 19 March 2020 be allowed.
A writ of certiorari issue directed to the second respondent quashing its decision dated 1 June 2018 (case number 1607464).
A writ of mandamus issue directed to the second respondent requiring it to determine, according to law, the application made to it by the applicant for review of the decision of a delegate of the first respondent made on 9 May 2016 under s 65 of the Migration Act 1958 (Cth).
The first respondent pay the costs of the applicant as agreed or assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1947 of 2018

NAVID DANESHPOUR

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS…

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: [2020] FCCA 879
Decision Date: 23 April 2020

CaseChat Overview and Summary

The applicant, Daneshpour, sought judicial review of a decision by the Migration Review Tribunal (MRT) which affirmed the delegate's refusal of a partner visa application. The core of the dispute concerned whether the MRT had correctly applied the relevant criteria for assessing the partner visa application, specifically those outlined in the Procedures Advice Manual (PAM3).

The primary legal issues before the court were whether the MRT had failed in its core function of review by misapplying the PAM3 criteria, and whether it had failed to undertake a cumulative assessment of all the circumstances of the application. The applicant argued that the Tribunal had not considered the reasons for the visa refusal as a whole, leading to an erroneous decision.

Judge Kelly found that the MRT had indeed failed to discharge its function of review as required. The Tribunal had not undertaken a cumulative assessment of the evidence and circumstances presented in support of the partner visa application. Instead, it appeared to have considered the reasons for refusal in isolation, rather than as a cohesive whole. This failure to conduct a comprehensive and cumulative assessment meant the Tribunal had not properly reviewed the delegate's decision according to law.

Consequently, the application for judicial review was allowed, and the MRT's decision was quashed. The matter was remitted back to the MRT to be decided according to law.

Orders