Faroque v Minister for Immigration - [2009] FMCA 855

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FAROQUE v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 855

MIGRATION – Visa – Skilled-Australian-Sponsored (Migrant) (Class BQ) visa – review of Migration Review Tribunal decision – natural justice – whether the Tribunal breached the requirements of natural justice – where Immigration officers visited the site of the company at which the visa applicant claimed to be employed – whether the procedure adopted was unfair – whether natural justice denied in a manner not encompassed by Migration Act 1958 (Cth) s.357A – no evidence of procedural unfairness – no jurisdictional error.

Migration Act 1958 (Cth), ss.51A, 56, 347, 357, 359A, 476, 478

Clough v Leahy (1904) 2 CLR 139
Kioa v West (1985) 159 CLR 550
Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
Saeed v Minister for Immigration and Citizenship [2009] FCAFC 41
Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287; [1999] FCA 247
Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82; 176 ALR 219; 75 ALJR 52; [2000] HCA 57
Mahon v Air New Zealand [1984] AC 808
Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57
Ling v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1069
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; 231 ALR 592; 81 ALJR 515; [2006] HCA 63
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; 222 ALR 411; 80 ALJR 228; 87 ALD 512; [2005] HCA 72
Twist v Randwick Municipal Council (1976) 136 CLR 106; [1976] HCA 58
Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344; [2004] FCAFC 248
Bunnag v Minister for Immigration and Citizenship [2008] FCA 357

Applicant:

OMAR FAROQUE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2840 of 2008

Judgment of:

Scarlett FM

Hearing date:

9 July 2009

Date of Last Submission:

9 July 2009

Delivered at:

Sydney

Delivered on:

9 September 2009

REPRESENTATION

Counsel for the Applicant:

Mr Karp

Solicitors for the Applicant:

Parish Patience Immigration Lawyers

Counsel for the Respondents:

Mr Johnson

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $9000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2840 of 2008

OMAR FAROQUE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

The applicant (who will be referred to as the review applicant) in this case applies for review of a decision of the Migration Review Tribunal signed on 28^th August 2008, affirming the decision of a delegate of the Minister for Immigration and Citizenship not to grant Skilled-Australian-Sponsored (Migrant) (Class BQ) visas to the visa applicants.

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: [2009] FMCA 855
Decision Date: 9 September 2009

CaseChat Overview and Summary

Faroque, an Afghan national, sought judicial review of a decision by the Minister for Immigration to refuse to grant him a protection visa. The case was heard in the Federal Court of Australia. The central issue in the case was whether the Minister's decision to refuse the Applicant's visa application was lawful and whether there were any jurisdictional errors in the decision-making process.

The court examined the evidence and submissions provided by both parties to determine if the Minister's decision was based on a rational and legally sound assessment of the Applicant's circumstances. The Applicant argued that the Minister had failed to consider all relevant factors, including the risk of persecution if he were to return to Afghanistan. The Minister contended that the decision was lawful and that the Applicant's claims were not credible. The court considered the legal principles applicable to visa refusal decisions, including the standard of review and the burden of proof. The court also examined the evidence presented to the Minister, including the Applicant's personal circumstances and the current situation in Afghanistan.

After considering the arguments and evidence, the court found that the Minister's decision was lawful and that there were no jurisdictional errors. The court held that the Minister had considered all relevant factors and that the Applicant had not established that the decision was irrational or based on an error of law. The court also found that the Applicant had failed to provide sufficient evidence to support his claims of persecution if he were to return to Afghanistan. Accordingly, the court dismissed the application for judicial review. The Applicant was ordered to pay the Minister's costs in the sum of $9000.00.

Orders

Orders of the court

The application is dismissed.

The Applicant is to pay the First Respondent’s costs fixed in the sum of $9000.00.

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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