Grier v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GRIER v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 198

MIGRATION – Review of Migration Review Tribunal decision – refusal of skilled Australian sponsored migrants visas – adverse credibility finding – whether finding open to the Tribunal considered – whether the Tribunal breached ss.360 or 359A of the Migration Act 1958 (Cth) considered – whether the Tribunal overlooked an element of the applicants claims considered.

Migration Act 1958 (Cth), ss.359A, 360, 424, 424A, 425
Migration Regulations 1994 (Cth)

F Hoffman-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295
Minister for Immigration and Citizenship v Applicant A125 of 2003 & Anor (2007) 243 ALR 691
Minister for Immigration; ex parte Applicant S20/2002 (2003) 198 ALR 59
Minister for Immigration v Yusuf (2001) 180 ALR 1
S1925 of 2003 v Minister for Immigration and Citizenship [2008] FCA 246
SZBEL v Minister for Immigration (2006) 228 CLR 152
SZBNK v Minister for Immigration [2005] FMCA 361
WAEE v Minister for Immigration [2003] FCAFC 184

Applicant: MARIA ELENA GRIER

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 3142 of 2008

Judgment of: Driver FM

Hearing date: 11 March 2009

Date of last submissions: 30 April 2009

Delivered at: Sydney

Delivered on: 25 June 2009

REPRESENTATION

Counsel for the Applicant: Mr P D Reynolds

Solicitors for the Applicant: Parish Patience Immigration Lawyers

Counsel for the Respondents: Ms S Sirtes

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3142 of 2008

MARIA ELENA GRIER

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”).  In these proceedings the applicant, Maria Elena Grier, makes an application for review of a decision of the Tribunal affirming a delegate’s decision to refuse her brother’s Class BQ Subclass 138 Skilled - Australian Sponsored visa.  The review applicant is the sponsor for the visa.  The primary visa applicant, Mr Ernesto Portillo Gamianga:

   a)is a citizen of the Philippines;

   b)included his wife and two children in the visa application;

   c)nominated his skilled occupation as cook (ASCO 4513-11);

   d)did not nominate a skilled occupation in the application for his wife (court book (“CB”)) 321 at [16]).

2. The Tribunal decision was made on 30 October 2008. 

3. The following statement of additional background facts is derived from the applicant’s outline of submissions filed on 23 February 2009 and the Minister’s outline of submissions filed on 5 March 2009.

4. On 13 December 2005, the visa applicants (Mr Gamianga, his wife and two children), being citizens of the Philippines, lodged an offshore application for Visa Applicants Skilled – Australian Sponsored (Class BQ) visas with the Minister’s Department.  In particular, subclass 138 visas were sought (CB at 1-182).  Relevantly, the documents provided in support included:

   a)a certificate from Abu M. Catering Services confirming…