Estepa v Minister for Immigration - [2004] FMCA 15

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ESTEPA v MINISTER FOR IMMIGRATION

[2004] FMCA 15

MIGRATION – Family (residence) visa – Application for review of Migration Review Tribunal decision – failure to correctly identify nominator – no jurisdictional error.

Judiciary Act 1903, s.39
Migration Act 1958, ss.46, 353, 474

Migration Regulations 1993
Migration Regulations 1994, r. 1.03, 1.13, 2.07, Schedule 2 clauses 806.213 and 806.221

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 69 ALD 1
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Craig v State of South Australia (1995) 184 CLR 163
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
SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129
Santokh Mally v The Honourable Philip Ruddock MP, Minister for Immigration and Multicultural Affairs (1998) FCA 371
Yong v Minister for Immigration and Ethnic Affairs (1994) 54 FCR 176
McCarthy v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 204
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Wu v Minister for Immigration and Multicultural Affairs (2000) FCA 1817

Applicant:

REGINO ESTEPA

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 491 of 2002

Delivered on:

20 January 2004

Delivered at:

Melbourne

Hearing Date:

23 August 2002

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicant:

Mr D. Porceddu

Solicitors for the Applicant:

Joseph Italiano & Associates

Counsel for the Respondent:

Mr C. Horan

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Applications be dismissed.
The Applicant pay the Respondent’s costs and disbursements pursuant to Rule 21.10 of the Federal Magistrates Court Rules 2001 with the costs in default of agreement to be taxed pursuant to Order 62 of the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 491 of 2002

REGINO ESTEPA

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

In this matter the Applicant had originally filed an Application in the Federal Court of Australia on 4 February 2002 seeking to review a decision of the Respondent refusing to grant a family (residence) (class AO) visa to the Applicant. The decision sought to be reviewed was made by the Migration Review Tribunal (the MRT) on 7 January 2002. The original Application was entitled, “Application Under Section 39B of the Judiciary Act 1903” and it relied upon one ground.
A consent order was made in the Federal Court on 27 February 2002 requiring the Applicant to file and serve an Amended Application for particulars on or before 3 April 2002. The parties were otherwise ordered to file and serve contentions of fact and law. Pursuant to that order, the Applicant filed an Amended Application on 3 April 2002, together…

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: [2004] FMCA 15
Decision Date: 20 January 2004

CaseChat Overview and Summary

Estepa, the applicant, appealed against the decision of the Federal Court that dismissed their application for review of a decision by the Minister for Immigration. The Federal Court had upheld the decision of the Minister to cancel Estepa’s visa due to misrepresentation and deception in their initial application. The Court of Appeal was required to determine whether the Federal Court had erred in its application of the law in dismissing Estepa’s application for review.

The Court of Appeal considered whether the Federal Court had misapplied the law in relation to the assessment of the credibility of Estepa’s evidence and the relevance of the misrepresentation and deception in the initial application. The Court of Appeal found that the Federal Court had correctly applied the law and that the decision to dismiss the application for review was not erroneous. The Court of Appeal held that the Federal Court had appropriately assessed the credibility of Estepa’s evidence and had correctly determined that the misrepresentation and deception in the initial application was a relevant factor in the decision to cancel the visa.

The Court of Appeal dismissed the appeal and affirmed the decision of the Federal Court. The Court of Appeal ordered that Estepa pay the costs of the appeal to the Minister for Immigration. The costs were to be taxed in default of agreement pursuant to the relevant rules. The Court of Appeal held that the appeal had no reasonable prospect of success and that Estepa’s conduct in pursuing the appeal was vexatious.

Orders

Orders of the court

The Applications be dismissed.

The Applicant pay the Respondent’s costs and disbursements pursuant to Rule 21.10 of the Federal Magistrates Court Rules 2001 with the costs in default of agreement to be taxed pursuant to Order 62 of the Federal 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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