MIGRATION – Review of decision of Migration Review Tribunal – refusal to grant a partner (migrant) (class BC) visa – failure to provided evidence required by Migration Regulations 1994 Reg.1.24 – application dismissed.
Nassouh v Minister for Immigration & Multicultural& Indigenous Affairs (2000) FCA 788 McGuire v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FMCA 1014 Serfonteyn v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FMCA 333 VCAD v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCAFC 1
Applicant:
MESUT GUVEN
First Respondent:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent:
MIGRATION REVIEW TRIBUNAL
File Number:
MLG 1326 of 2005
Judgment of:
Hartnett FM
Hearing date:
1 March 2006
Delivered at:
Melbourne
Delivered on:
24 March 2006
REPRESENTATION
Counsel for the Applicant:
Mr M. Gerkens
Solicitors for the Applicant:
FCG Legal
Counsel for the Respondent:
Mr R.C. Knowles
Solicitors for the Respondent:
Phillips Fox
ORDER
That the application be dismissed.
That the applicant pay the respondent's costs fixed in the sum of $5000.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE
MLG 1326 of 2005
MESUT GUVEN
Applicant
And
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
First Respondent
MIGRATION REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
By his application filed with this court on 26 October 2005, the applicant sought judicial review of a decision of the Migration Review Tribunal (the Tribunal) dated 6 October 2005. In that decision the Tribunal affirmed a decision of the first respondent's delegate not to grant the applicant a partner (migrant) (class BC) visa. On 25 January 2006 the applicant filed an amended application which was again amended by the filing of a further amended application on 14 February 2006.
At the commencement of the hearing of this matter this day, the applicant sought leave to rely upon the amended application filed by him on 14 February 2006. The respondent did not object to the applicant relying on that further amended application and I granted leave for the applicant to do so.
The applicant sets out the particulars of his claim (that he was aggrieved by the decision of the second respondent) as follows:
The decision was made without jurisdiction or is affected by an error of jurisdiction:
PARTICULARS
(ii)by the manner in which it conducted the review, the Respondent Tribunal misled the applicant into believing that the only issue requiring determination by the Tribunal was whether or not the subject marriage had broken down irretrievably. It thereby deprived him of the opportunity of effectively addressing the issue upon which the decision was based (ie, the marriage was not genuine in the first place) with the result that the Tribunal failed to meaningfully perform its function under the Act and thereby failed to provide natural justice or procedural fairness;
(iii)in applying Migration Regulations Second Schedule criteria 100.221, the Second Respondent asked…
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
AGLC
Guven v MIMIA [2006] FMCA 311
Case
[2006] FMCA 311
Decision Date
CaseChat Overview and Summary
In the Federal Magistrates Court of Australia, Mesut Guven sought judicial review of the decision made by the Migration Review Tribunal to affirm the decision of the Minister for Immigration & Multicultural & Indigenous Affairs, not to grant him a partner (migrant) (class BC) visa. The primary issue was whether the Tribunal erred in its interpretation of the relevant provisions of the Migration Regulations 1994. Specifically, the applicant argued that the Tribunal had applied the wrong test by first determining whether the marriage was genuine before considering his claims of domestic violence. The court considered the relevant statutory provisions and case law, finding that the Tribunal's interpretation of the regulations was correct, and that even if there was an error, it would not have materially affected the outcome.
The Federal Magistrates Court found that the Tribunal's decision was legally sound and not affected by any jurisdictional error. The Tribunal correctly identified that it needed to first determine whether the relationship was spousal within the meaning of the Regulations before considering claims of domestic violence. The court also noted that the Tribunal's alternative findings provided an independent basis for the rejection of the applicant's claims. Consequently, the application for judicial review was dismissed, and the applicant was ordered to pay the respondent's costs in the sum of $5,000.