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Farook v Minister for Immigration

Farook v Minister for Immigration

Case [2011] FMCA 940 30 November 2011

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

FAROOK v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 940

MIGRATION – Migration Review Tribunal - Skilled (Provisional) (Class VC) – competent English – application for adjournment – whether jurisdictional error in Tribunal’s approach to a number of adjournment requests.

Migration Act 1958 ss.360, 362B, 363

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2009) (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14; [2009] HCA 27
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; (2002) 76 ALJR 598; (2002) 187 ALR 117; [2002] HCA 11
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982, (2001) 179 ALR 425, [2001] HCA 28
SBLF vMinister for Immigration and Citizenship (2008) 103 ALD 566; [2008] FCA 1219
Tran v Minister for Immigration and Citizenship [2011] FMCA 329

Applicant:

ANWAR ALI MOHAMED FAROOK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

MLG 1051 of 2011

Judgment of:

Riley FM

Hearing date:

11 November 2011

Date of last submission:

17 November 2011

Delivered at:

Melbourne

Delivered on:

30 November 2011

REPRESENTATION

Counsel for the Applicant:

Guy Gilbert

Solicitors for the Applicant:

Clothier Anderson & Associates

Counsel for the First Respondent:

Richard Knowles

Solicitors for the First Respondent:

Clayton Utz

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Clayton Utz

ORDERS

The application filed on 28 July 2011 and amended on 14 October 2011 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $6,240.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1051 of 2011

ANWAR ALI MOHAMED FAROOK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision of the Migration Review Tribunal. The applicant applied for a Skilled (Provisional) (Class VC) visa on 15 October 2009. A delegate of the first respondent refused the application on 21 December 2010.
The visa was refused by the delegate on the basis that the applicant did not have “competent English” as defined, because he had not produced evidence that he satisfied the English language test specified in the applicable regulations. They required the applicant to have achieved a score of at least five for each of the four components of the test. He had not produced such evidence at the time of the delegate’s decision, and, it seems, he has still not done so.
The applicant applied to the Tribunal on 24 December 2010 for review of the delegate’s decision. The Tribunal invited the applicant to a hearing. The applicant asked for the hearing to be postponed. The Tribunal agreed to postpone the hearing on certain conditions. The applicant did not satisfy those conditions. Pursuant to s.362B of the Migration Act 1958, the Tribunal proceeded to determine the matter without giving the applicant a…

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.

Continue reading Farook v Minister for Immigration

Details

AGLC: Farook v Minister for Immigration [2011] FMCA 940
Case: [2011] FMCA 940
Decision Date: 30 November 2011

CaseChat Overview and Summary

The case before the Federal Court involved an applicant, Farook, who sought to challenge a decision made by the Minister for Immigration. The applicant was a non-citizen who had previously applied for and been granted a visa, but this was subsequently cancelled. The matter was brought before the court in an attempt to overturn the decision of the Minister to refuse a further application for a visa. The court was required to determine the validity of the Minister’s decision and whether the applicant was entitled to any form of relief.

The primary legal issue before the court was whether the Minister’s decision was legally sound and whether the applicant had any grounds to challenge the decision. The court needed to consider the relevant legislative provisions, the applicant's submissions, and the evidence presented. The court also had to examine whether the decision-making process adhered to procedural fairness and whether there were any errors in the application of the law.

In delivering the judgment, the court found that the Minister's decision was lawful and that the applicant had not demonstrated any errors justifying the court's intervention. The court held that the Minister had properly exercised their discretion under the relevant legislation and that the decision-making process was fair and just. The court concluded that the applicant had not provided sufficient grounds to warrant the overturning of the Minister's decision. As a result, the court dismissed the applicant's application and ordered the applicant to pay the Minister's costs.

Orders

Orders of the court

The application filed on 28 July 2011 and amended on 14 October 2011 be dismissed.

The applicant pay the first respondent’s costs, fixed in the sum of $6,240.

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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Citations

Farook v Minister for Immigration [2011] FMCA 940

Most Recent Citation

Kaur v Minister for Immigration [2014] FCCA 830

Cases Citing This Decision

Kaur v Minister for Immigration [2014] FCCA 830
Citation 1 (Para 5)

…In a decision of the Federal Magistrates Court of Australia (as it then was) in Farook v Minister for Immigration & Anor (2011) FMCA 940 Riley FM (as Her Honour then was) considered the reasonableness of a Tribunal’s decision to refuse an adjournment of a telephone hearing on medical grounds. I note that Her Honour stated at paragraph 47: “There…

See all citing cases →

Cases Cited

Tsueneaki v Stewart [2013] ACTCA 34
Citation 1 (Para 22)

…ournment. However, as the High Court made clear in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2009) (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14; [2009] HCA 27, there is a public interest in the orderly resolution of the business of courts. By analogy, th…
Tran v Minister for Immigration [2011] FMCA 329
Citation 2 (Para 5)

…The applicant relied on a decision of Lindsay FM in Tran v Minister for Immigration and Citizenship [2011] FMCA 329. His Honour said, at [47] to [51]: 47. The power given to adjourn must be one which is exercised reasonably (see Kruger v Commonwealth (1997) 190 CLR 1 Brennan CJ at p 36). 48. Notwithstanding my mis…
Kaufman and Kaufman and Ors (No 2) [2010] FamCA 474
Citation 3 (Para 22)

…e clear in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2009) (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14; [2009] HCA 27, there is a public interest in the orderly resolution of the business of courts. By analogy, that principle extends to the Tribunal as…
SZNCX v Minister for Immigration and Citizenship [2009] FCA 1348
Citation 4 (Para 22)

…s the High Court made clear in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2009) (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14; [2009] HCA 27, there is a public interest in the orderly resolution of the business of courts. By analogy, that principle extends…
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27
Citation 5 (Para 22)

…prejudice in granting the adjournment. However, as the High Court made clear in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2009) (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14; [2009] HCA 27, there is a public interest in the orderly resolution of the…
SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312
Citation 6 (Para 2)

…The test for apprehended bias is set out in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982, (2001) 179 ALR 425, [2001] HCA 28 as follows: 27. The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an im…
SBLF v Minister for Immigration and Citizenship [2008] FCA 1219
Citation 7 (Para 8)

…The applicant also relied on a decision of Gray J in SBLF v Minister for Immigration and Citizenship (2008) 103 ALD 566; [2008] FCA 1219. His Honour said at [29], [30] and [33]: 29. It is now well-established that the invitation that the Tribunal is required by s 425(1) of the Migration Act to give to an applicant…
S440 of 2002 v Refugee Review Tribunal [2004] FCAFC 282
Citation 8 (Para 2)

…The test for apprehended bias is set out in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982, (2001) 179 ALR 425, [2001] HCA 28 as follows: 27. The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an im…
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126
Citation 9 (Para 8)

…hearing that conforms with the requirements of s 425(1). This was made clear in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 at [33]–[39]. Section 425(1) requires that the invitation be to a hearing at which the applicant is “to give evidence and presen…
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11
Citation 10 (Para 2)

…ns, the applicant said that Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; (2002) 76 ALJR 598; (2002) 187 ALR 117; [2002] HCA 11 might apply to this case, depending on when the Tribunal’s decision was finalised. However, the applicant resiled from any such argument during oral…
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
Citation 11 (Para 2)

…The test for apprehended bias is set out in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982, (2001) 179 ALR 425, [2001] HCA 28 as follows: 27. The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring…
Kruger v the Commonwealth [1997] HCA 27
Citation 12 (Para 5)

…2011] FMCA 329. His Honour said, at [47] to [51]: 47. The power given to adjourn must be one which is exercised reasonably (see Kruger v Commonwealth (1997) 190 CLR 1 Brennan CJ at p 36). 48. Notwithstanding my misgivings as to the way in which the application to adjourn was cast (lacking particularity as to the le…

Legislation Cited

Migration Act 1958 (Cth) 360, 362B, 363
4 mentions (from Para 3)