Dawood v Minister for Immigration - [2016] FCCA 1576

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAWOOD v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1576

Catchwords:

MIGRATION – Review of Migration Review Tribunal decision – whether Tribunal’s decision affected by jurisdictional error – whether applicant met the requirements of reg.1.15AA(1)(b) of the Migration Regulations 1994 (Cth) – whether Tribunal failed to consider relevant information before it – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), regs.1.15AA(1)(e)(i), 1.15AA(1)(e)(ii)

Cases cited:

JOJO v MIBP [2013] FCCA 1554

Applicant:

FADI KERARDOS DAWOOD

First Respondent:

MINISTER OF IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2490 of 2014

Judgment of:

Judge McNab

Hearing date:

23 June 2016

Date of Last Submission:

23 June 2016

Delivered at:

Melbourne

Delivered on:

30 June 2016

REPRESENTATION

Solicitors for the Applicant:

In Person

Counsel for the Respondent:

Mr Day

Solicitors for the Respondent:

DLA Piper Australia

ORDERS

The Second Respondent’s name be amended to Administrative Appeals Tribunal.
The applicant’s application filed 10 December 2014 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $3416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2490 of 2014

FADI KERARDOS DAWOOD

Applicant

And

MINISTER OF IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By an application filed on 10 December 2014, the applicant sought judicial review of a decision of the Migration Review Tribunal (as it then was) (“the Tribunal”) dated 27 November 2014. The Tribunal affirmed a decision of a delegate of the first respondent, made on 12 November 2013, not to grant the applicant an Other Family (Residents) (class BUD) carer visa.
The grounds of review in the application erroneously seek the judicial review of a decision of the Refugee Tribunal made on 4 November 2013 in relation to a refusal to grant a protection visa to the applicant. The grounds of the application bear no relation to this application and have plainly been copied from some other unrelated document into this current application.
For the purposes of this application, the respondent and the Court had assumed that the grounds of review are those matters raised in paragraphs 14 and 15 of the applicant’s affidavit sworn 9 December 2014. Those paragraphs provide (quoting directly):
The Tribunal did not give weight to my father’s current health situation and he did not consider that none of my siblings can look after him. Because they all have their own life and they are all busy with their work and study. And also the member did not consider that I am the one who’s looking after him for the last two years and because of that we have a great bonding now and now if I have to leave my father his health and mentally condition will be deteriorate.
I provided documents to the Tribunal to corroborate my claims. The Tribunal failed to engage in an active intellectual process of the documents as well as with the information. It 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: [2016] FCCA 1576
Decision Date: 30 June 2016

CaseChat Overview and Summary

In *Dawood v Minister for Immigration*, the applicant sought judicial review of a decision made by the Migration Review Tribunal (MRT). The core of the dispute concerned whether the MRT had committed a jurisdictional error in its assessment of the applicant's eligibility for a visa under the *Migration Regulations 1994* (Cth).

The Federal Circuit Court was required to determine two primary legal issues. Firstly, whether the applicant satisfied the requirements of regulation 1.15AA(1)(b) of the *Migration Regulations 1994*. Secondly, the court had to consider whether the MRT had failed to take into account relevant information that was before it when making its decision, which would constitute a jurisdictional error.

Judge McNab found that the MRT had not committed a jurisdictional error. The court reasoned that the Tribunal had properly considered the evidence before it and had correctly applied the relevant legislative provisions, including regulation 1.15AA(1)(b). The applicant's argument that the Tribunal had failed to consider crucial information was not substantiated. Consequently, the application for judicial review was dismissed.

Orders