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Garcevic v MIAC

Garcevic v MIAC

Case [2012] FMCA 931 11 October 2012

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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)

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

A writ of certiorari bringing the decision into this court to be quashed.
A writ of mandamus directing the Second Respondent to re-determine the applicant’s application to it according to law.
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

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)…

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 Garcevic v MIAC

Details

AGLC: GARCEVIC & ORS v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 931
Case: [2012] FMCA 931
Decision Date: 11 October 2012

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

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

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

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

GARCEVIC & ORS v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 931

Most Recent Citation

Nguyen (Migration) [2018] AATA 1670

Cases citing this decision · 8 of 8 shown

Khaled (Migration)
[2022] AATA 2789 Para 9

…CA 3161 at [13]. [3] Re MILGEA and Dhillon [1990] FCA 144 citing with approval Street CJ in R v Cahill (1978) 2 NSWLR 453 at 458, and Garcevic v MIAC [2012] FMCA 931 at [34]. [4] Chand v MIMA [1997] FCA 530. [5] Singh v MIEA [1996] FCA 1429 at [13], [24]. [6] MIMA v Asif [2000] FCA 228 at [20].…
NGUYEN (Migration)
[2021] AATA 2541 Para 8

…ting with approval Street CJ in R v Cahill (1978) 2 NSWLR 453 at 458, also referred to as still relevant in Garcevic v MIAC [2012] FMCA 931 at [34]. Therefore, despite the above concerns, the Tribunal is satisfied on balance, having considered all of the evidence before it, including oral evidence from the applica…
SHAHIN (Migration)
[2021] AATA 2611 Para 7

…990] FCA 144, citing with approval Street CJ in R v Cahill (1978) 2 NSWLR 453 at 458, also referred to as still relevant in Garcevic v MIAC [2012] FMCA 931 at [34].…
xxx (Migration)
[2021] AATA 1163 Para 5

…n [1990] FCA 144, citing with approval Street CJ in R v Cahill (1978) 2 NSWLR 453 at 458, also referred to as still relevant in Garcevic v MIAC [2012] FMCA 931 at [34].…
Yeung (Migration)
[2020] AATA 4137 Para 7

…stralia. However, the Tribunal accepts that there may be multiple motivations for entering a relationship, as was recognised in Garcevic v MIAC [2012] FMCA 931, citing the Full Federal Court of Northrop, Wilcox and French JJ in Minister for Immigration & Anor v Dhillon [1990] FCA 144: … people enter marriages for…
Moussa (Migration)
[2020] AATA 1049

…ss 5F, 65, 359AA Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cl 309.211(2)(a), 309.221 CASES Garcevic v MIAC [2012] FMCA 931 He v MIBP [2017] FCAFC 206 MILGEA v Dhillon [1990] FCA 144…
1820779 (Migration)
[2019] AATA 6779 Para 31

…In Garcevic v MIAC [2012] FMCA 931 (Raphael FM, 11 October 2012) at [34], the Court accepted that Dhillon and a number of other cases considering repealed provisions requiring a ‘mutual commitment to a shared life as husband and wife to the exclusion of others’ still represents the law as to what might constitute…
Nguyen (Migration)
[2018] AATA 1670 Para 25

…genuine and continuing relationship. [1] Re MILGEA and Dhillon [1990] FCA 144 (Northrop, Wilcox and French JJ, 8 May 1990), See also Garcevic v MIAC [2012] FMCA 931 (Raphael FM, 11 October 2012) at [34].…

View all 8 citing cases →

Cases cited in this decision · 12 of 12 shown

R v Cahill
[2016] QSC 275 Para 10

…Finally, the applicant referred me to the views of Street CJ in R v Cahill (1978) NSWLR 453 at [458]: “Quite apart from matters of religious teaching, it is known that marriages are at times contracted for reasons falling short of the more generally recognized purposes of entering into that relationship. In England…
SZEWL v Minister for Immigration and Citizenship
[2009] FCA 209 Para 16

…The issue was again enlivened in SZEWL v Minister for Immigration and Citizenship [2009] FCA 209 before Rares J who also referred to the conflicting nature of the above authorities. In that case, Rares J. considered s.424A in light of s.426 and the fact it was the Tribunal, and not the applicant, who called witne…
SZBYR v Minister for Immigration and Citizenship
[2007] HCA 26 Para 12

…, denial or undermining of the applicant’s claim to be in a married relationship with her husband; SZBYR v Minister for Immigration & Anor [2007] 81 ALJR 1190 [3] at [17] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. It was thus information which was required to be given to the applicant for comment…
MZXGB v Minister for Immigration and Citizenship
[2007] FCA 392 Para 14

…applicant is information provided by the applicant. Such inconsistency was identified by Lander J in MZXGB v Minister for Immigration and Citizenship [2007] FCA 392 in which his Honour referred to the apparently conflicting decisions of Gray J in VBAM of 2002 v Minister for Immigration & Multicultural Affairs [20…
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004
[2006] HCA 53 Para 16

…edures of the tribunal are inquisitorial, not adversarial: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at 17 [40] per Gummow ACJ, Callinan, Heydon and Crennan JJ, 43 [126] per Kirby J; SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs (20…
SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs
[2006] HCA 49 Para 16

…ummow ACJ, Callinan, Heydon and Crennan JJ, 43 [126] per Kirby J; SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 230 CLR 486 at 491 [4] per Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ. It would be incongruous to hold that s 424A(3)(b) characterised everything that might be sai…
SZECG v Minister for Immigration & Multicultural & Indigenous Affairs
[2006] FCA 733 Para 14

…at [77]). ” This decision was in turn followed by Branson J in SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733, where her Honour found that the Tribunal was required by s.424A to alert the applicant to the negative inference it had drawn from the evidence given by the app…
Zhang v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCAFC 30 Para 2

…out its findings on a material question of fact. The respondent relies on what fell from the Full Court in Zhang v Minister for Immigration & Anor [2005] FCAFC 30 at [20]: “[20]In its reasons, the Tribunal did not laboriously evaluate seriatim each of the considerations in reg 1.15A(3). However, it did consider e…
VBAM of 2002 v Minister for Immigration and Multicultural Affairs
[2003] FCA 504 Para 14

…392 in which his Honour referred to the apparently conflicting decisions of Gray J in VBAM of 2002 v Minister for Immigration & Multicultural Affairs [2003] FCA 504 and to the obiter in Lee J’s judgment in Applicant M164/2002 v Minister for Immigration & Multicultural [2006] FCAFC 16. In VBAM , Gray J held at [44…
Local Government and Ethnic Affairs v Gamdur Singh Dhillon and Marcelle Suzanne Maree Lievense Dhillon
[1990] FCA 144 Para 7

…. The applicants referred the court to the decision of the Full Court Northrop, Wilcox and French JJ in Minister for Immigration & Anor v Dhillon [1990] FCA 144 in which the court opined at [11]: “[11]The primary judge referred in his reasons to the concept of marriage in Australian law, citing the remarks of Str…
Sevim v Minister for Immigration & Multicultural Affairs
[2001] FCA 1597 Para 9

…In Sevim v Minister for Immigration & Anor (2001) 114 FCR 126 Gray J, after quoting from Ozbunbar : “It would indicate that the Tribunal had taken the view that a genuine marriage required some parity of commitment between the parties, instead of a commitment by each to the other, as husband and wife, to the exclusio…
[2006] FCAFC 16
[2006] FCAFC 16 Para 14

…tion & Multicultural Affairs [2003] FCA 504 and to the obiter in Lee J’s judgment in Applicant M164/2002 v Minister for Immigration & Multicultural [2006] FCAFC 16. In VBAM , Gray J held at [44] that the evidence given by three witnesses for the applicant was information that the applicant gave for the purpose of…

Legislation cited in this decision · 2

Migration Act 1958 (Cth)
359A, 368(1)(c), 424A, 5F(2)(b) 5 mentions (from Para 3)
Migration Regulations 1994 (Cth)
1 mention (from Para 2)