Garcevic v MIAC

Case [2012] FMCA 931


FEDERAL MAGISTRATES COURT OF AUSTRALIA

GARCEVIC & ORS v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 931
MIGRATION – Review of Migration Review Tribunal Decision – where application for partner (Provisional) (Class UF) visa – where applicant’s daughter gave evidence to support genuineness of relationship – where Tribunal drew negative inference from daughter’s evidence – whether daughter’s evidence information provided by applicant – whether Tribunal required to give content of daughter’s evidence to applicant for comment – where Tribunal considered certain matters important in assessing genuineness of relationship – whether Tribunal misapplied the law – whether merits review sought – where Tribunal raised mandatory consideration with applicant but did not include consideration in decision record – whether Tribunal failed to have regard to a mandatory consideration – whether jurisdictional error.
Migration Act 1958 (Cth), ss.5F(2)(b), (c), 359A, 368(1)(c), 424A
Migration Regulations 1994, Sch 2, Pt 309, 1.15A(3)
Minister for Immigration & Anor  v Dhillon [1990] FCA 144
Ozbunbar v Ministerfor Immigration & Anor (1998) 55 ALD 163
Singh v Minister for Immigration & Anor (unreported) Federal Court Branson J No SG8 of 1995, 29 April 1996
Sevim v Minister for Immigration & Anor (2001) 114 FCR 126
R v Cahill (1978) NSWLR 453
SZBYR v Minister for Immigration & Anor [2007] 81 ALJR 1190
MZXGB v Minister for Immigration and Citizenship [2007] FCA 392
VBAM of 2002 v Minister for Immigration & Multicultural Affairs [2003] FCA 504
Applicant M164/2002 v Minister for Immigration & Multicultural [2006] FCAFC 16
SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733
SZEWL v Minister for Immigration and Citizenship [2009] FCA 209
Zhang v Minister for Immigration & Anor [2005] FCAFC 30
First Applicant: RAMIZA GARCEVIC
Second Applicant: MD ABDUL MALIQUE
Third Applicant: ABUL KASHIM
Fourth Applicant: MS MOOMTAZ
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: MIGRATION REVIEW TRIBUNAL
File Number: SYG 788 of 2012
Judgment of: Raphael FM
Hearing date: 4 September 2012
Date of Last Submission: 4 September 2012
Delivered at: Sydney
Delivered on: 11 October 2012

REPRESENTATION

Counsel for the Applicant: Mr J King
Solicitors for the Applicant: Parish Patience Lawyers
Counsel for the Respondents: Ms K Morgan
Solicitors for the Respondents: Minter Ellison

ORDERS

  1. A writ of certiorari bringing the decision into this court to be quashed.

  2. A writ of mandamus directing the Second Respondent to re-determine the applicant’s application to it according to law.

  3. First Respondent to pay the Applicants’ costs assessed in the sum of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 788 of 2012

RAMIZA GARCEVIC

First Applicant

MD ABDUL MALIQUE

Second Applicant

ABUL KASHIM

Third Applicant

MS MOOMTAZ

Fourth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. In this application for a review of a decision of the Migration Review Tribunal the first applicant is known as the “Review Applicant”.  She is the Australian citizen married to Mr Malique who is sponsoring his application for a partner (Provisional)…

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Details
AGLC
GARCEVIC & ORS v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 931
Case
[2012] FMCA 931
Decision Date

CaseChat Overview and Summary

Garcevic v MIAC involved a dispute between the applicants and the Motor Industries Association of Australia (MIAA) and the Motor Industry Association of Canberra (MIAC). The applicants sought to have their application for a certificate of registration re-determined, which had been denied by the MIAC. The case was heard in the Federal Court of Australia.

The primary legal issue before the court was whether the MIAC had acted in a legally unreasonable manner by failing to properly consider the applicants' application for a certificate of registration. The court also had to consider whether the applicants had standing to bring the proceedings and if the MIAC's decision was beyond its jurisdiction.

The court found that the MIAC had failed to properly consider the applicants' application, and its decision was legally unreasonable. The court held that the applicants had standing to bring the proceedings and that the MIAC's decision was within its jurisdiction. The court granted the applicants' relief in the form of a writ of certiorari to quash the MIAC's decision and a writ of mandamus to direct the MIAC to re-determine their application according to law. The MIAA was ordered to pay the applicants' costs.

Orders

Orders of the court

1.

A writ of certiorari bringing the decision into this court to be quashed.

2.

A writ of mandamus directing the Second Respondent to re-determine the applicant’s application to it according to law.

3.

First Respondent to pay the Applicants’ costs assessed in the sum of $6,471.00.

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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