Dowlat v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DOWLAT v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 171

MIGRATION – Review of Migration Review Tribunal decision – refusal of a child orphan relative visa – Tribunal erred by failing to give sufficient notice to the review applicant that he could have witnesses at the Tribunal hearing – consideration of discretion to refuse relief – possible prejudice to the applicant flowing from the error – writs ordered.

Migration Act 1958 (Cth), ss.359, 359A, 359AA, 359B, 360, 360A, 361, 424, 425, 425A, 424B, 424C, 426
Migration Regulations 1994 (Cth)

SZAIA v Minister for Immigration [2008] FCA 1372
SZBQS v Minister for Immigration [2008] FMCA 812
SZIZO v Minister for Immigration [2008] FCAFC 122
SZLTR v Minister for Immigration [2008] FCA 1889
SZMDI v Minister for Immigration [2009] FMCA 103

Applicant: RAWOOF DOWLAT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 3369 of 2008

Judgment of: Driver FM

Hearing date: 5 March 2009

Delivered at: Sydney

Delivered on: 20 March 2009

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: Dobbie and Devine Immigration Lawyers Pty Ltd

Counsel for the Respondents: Ms T Wong

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. A writ of certiorari shall issue quashing the decision of the Migration Review Tribunal made on 3 December 2008.

2. A writ of mandamus shall issue requiring the Migration Review Tribunal to redetermine the review application before it according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3369 of 2008

RAWOOF DOWLAT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”).  The decision was made on 3 December 2008.  The Tribunal affirmed a decision of the delegate not to grant the five visa applicants Child (Migrant) (Class AH) visas.

2. The visa applicants made the child visa applications on 2 November 2006 on the basis of being orphan relatives.  The critical criterion to be satisfied, for the purposes of the current review, is whether the visa applicants satisfied the definition of “orphan relative”, set out in regulation 1.14 of the Migration Regulations 1994 (Cth) (“the Migration Regulations”). That regulation relevantly stated:

   1.14 Orphan Relative

   An applicant for a visa is an orphan relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if:

   (a)    the applicant:

   (i)          has not turned 18; and

   (ii)     does not have a spouse; and

   (iii)   is a relative of that other person; and

   (b)the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts; and

   (c)there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant.

3. There are therefore three ways to satisfy regulation 1.14(b); an applicant cannot be…