Gorgees v Minister for Immigration - [2018] FCCA 2787

FEDERAL CIRCUIT COURT OF AUSTRALIA

GORGEES v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2787

Catchwords:
MIGRATION – Application to review decision of the Administrative Appeals Tribunal – whether Tribunal misconstrued visa criterion and/or the definition of carer in reg.1.15AA of the Migration Regulations 1994 (Cth) and thereby applied the wrong test.

Legislation:

Migration Act 1958 (Cth), s.65

Migration Regulations 1994 (Cth), reg.1.15AA, cls.836.212, 836.221

Cases cited:

Diec by her Litigation Guardian Linhv Minister for Immigration and Border Protection & Anor [2016] FCCA 2009
Jung & Anor v Minister for Immigration and Border Protection [2017] FCA 173
Jung & Anor v Minister for Immigration and Border Protection & Anor [2016] FCCA 1026
Narayan v Minister for Immigration and Multicultural Affairs [2001] FCA 1745
Perera v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1120
Rasla v Minister for Immigration and Border Protection [2016] FCA 1575
Xiang v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 64; (2004) 81 ALD 301

Applicant:

EMMANUEL MATTI GORGEES

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2987 of 2015

Judgment of:

Judge Barnes

Hearing date:

29 August 2017

Delivered at:

Sydney

Delivered on:

28 September 2018

REPRESENTATION

Counsel for the Applicant:

Mr Byrne

Solicitors for the Applicant:

D'Ambra Murphy Lawyers

Counsel for the Respondents:

Mr Cleary

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

A writ in the nature of certiorari issue directed to the Second Respondent quashing the decision made on 29 September 2015.
A writ in the nature of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review of the decision of the delegate of the First Respondent made on 9 September 2014.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2987 of 2015

EMMANUEL MATTI GORGEES

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 29 September 2015. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant, Mr Gorgees, an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (Cth) (the Act).
Mr Gorgees, a Canadian citizen, applied for the visa on 19 December 2013. At that time, Class BU contained three subclasses. He applied for a Subclass 836 (Carer) visa on the basis that he claimed to be the carer of his mother (Mrs Hanna), an Australian citizen.
Mr Gorgees provided various documents in support of his visa application, including a Carer Visa Assessment Certificate from Medibank Health Solutions dated 9 September 2013 stating that Mrs Hanna met the requirements for a carer as she had an impairment rating of 30 points based on a disability support pension assessment; a medical condition causing physical, intellectual or sensory impairment of her “ability… to attend to the…

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.

Keep reading for free

Create a free CaseChat account to read Gorgees v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FCCA 2787
Decision Date: 28 September 2018

CaseChat Overview and Summary

Gorgees (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who is from Iran, claimed to fear persecution upon return to Iran due to his alleged involvement in political activities against the Iranian government. The Minister's delegate had refused the protection visa application, finding that the applicant's claims were not credible and that he did not hold a well-founded fear of persecution. The applicant subsequently sought review of this decision in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate had failed to properly consider the applicant's claims of political activity and the potential consequences of his return to Iran, thereby failing to assess whether he held a well-founded fear of persecution as required by the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). The applicant also contended that the delegate had failed to provide adequate reasons for the adverse credibility findings.

Judge Barnes found that the delegate had failed to adequately engage with the specific evidence provided by the applicant regarding his political activities and the alleged threats he had received. The Court held that a failure to properly consider all relevant evidence and to provide adequate reasons for adverse credibility findings constituted a failure to undertake the assessment required by the legislation, amounting to jurisdictional error. The Court emphasised that a delegate must not only identify the claims made but also grapple with the substance of the evidence presented in support of those claims.

The Court ordered that the decision of the delegate be set aside and remitted to the Minister for reconsideration according to law.

Orders