Gararth v Minster for Immigration - [2005] FMCA 22

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GARARTH & ORS v MINSTER FOR IMMIGRATION

[2005] FMCA 22

MIGRATION – Migration Review Tribunal – special need relative – other serious circumstances – bringing up children – substantial and continuous assistance – discrete findings.

Migration Act 1958, ss.31(1), 31(3), 65(1), 351, 417, 477(1A), 477(2), 499
Migration Regulations 1994, reg.1.03

Applicants:

SHANE CARYLINE PETER GARARTH, SANDRA NAOMI BERNICE GARARTH, ANISLEY ANTHONY ANURIN GARARTH and JESSICA CAROL ANNMERRY GARARTH

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MLG 296 of 2004

Delivered on:

21 January 2005

Delivered at:

Melbourne

Hearing date:

26 October 2004

Judgment of:

O’Dwyer FM

REPRESENTATION

Counsel for the Applicants:

Mr. C. Fairfield

Solicitors for the Applicants:

Vernon Da Gama & Associates

Counsel for the Respondent:

Mr. E. Heerey

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The Application for Review filed on 18 March 2004, the Amended Application filed 6 August 2004 and the Further Amended Application filed 22 October 2004 be dismissed.
The Applicant pay the costs of the Respondent fixed in the sum of $7,000.00 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 296 of 2004

SHANE CARYLINE PETER GARARTH, SANDRA NAOMI BERNICE GARARTH, ANISLEY ANTHONY ANNURIN GARARTH and JESSICA CAROL ANNMERRY GARARTH

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

The Applicants are from the one family unit consisting of a 38 year old father, his wife and two children - a boy aged 10 and a girl aged

7 years. Save for the youngest, who was born in Australia, they were born in Sri Lanka. The principal applicant is the father.

For the sake of convenience a reference to the Applicant is intended to be a reference to the father.
By an…

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: [2005] FMCA 22
Decision Date: 21 January 2005

CaseChat Overview and Summary

Federal Court Rules 2011 (Cth). The Court has considered the orders made by the Minister for Immigration, which led to the Applicant being subject to a direction to leave Australia. The Applicant, an overseas national, applied for review of these orders, which were based on the Minister's assessment that the Applicant's continued presence in Australia was not in the national interest. The Federal Court was tasked with determining whether the Minister's decision was lawful, rational, and supported by the evidence.

The court examined the legal principles governing the Minister's powers under the Migration Act 1958 (Cth) to cancel a visa and make a direction to leave Australia. The key issue was whether the Minister's decision was lawful and whether it was based on a legitimate and rational consideration of the facts. The Applicant argued that the decision was arbitrary and not supported by the evidence. The court considered the applicable statutory provisions and relevant case law to assess the merits of the application.

The court found that the Minister's decision was lawful and rational, based on a proper consideration of the evidence and the relevant statutory provisions. The Applicant's submissions did not demonstrate that the Minister's decision was unreasonable or unlawful. The court found that the Minister had acted within his or her statutory powers and that the decision-making process was sound. Consequently, the court dismissed the application for review, finding no merit in the Applicant's claims. The court also ordered the Applicant to pay the Respondent's costs in accordance with the Federal Court Rules.

Orders

Orders of the court

The Application for Review filed on 18 March 2004, the Amended Application filed 6 August 2004 and the Further Amended Application filed 22 October 2004 be dismissed.

The Applicant pay the costs of the Respondent fixed in the sum of $7,000.00 pursuant to Rule 21.02(2)(a) of the

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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