DANESHPOUR v Minister for Immigration

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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:

ATT20 v Minister for Immigration and Boarder Protection [2020] FCCA 499
Choi v Minister for Immigration and Border Protection [2018] FCA 291
Jackson v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 203
Lobo & Minister for Immigration Multicultural & Indigenous Affairs [2003] FCAFC 168
Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188
Monakova v Minister for Immigration and Multicultural Affairs [2006] FMCA 849
MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478
Paduano v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 143 FCR 204
Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32

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:

  1. 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.

  2. The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

  3. By consent, the applicant have leave, now for then, to file the amended application filed on 19 March 2020.

  4. The amended application filed 19 March 2020 be allowed.

  5. A writ of certiorari issue directed to the second respondent quashing its decision dated 1 June 2018 (case number 1607464).

  6. 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).

  7. 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…

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Details
Case
[2020] FCCA 879
Decision Date

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

Orders of the court

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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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