Habbabe v Minister for Immigration - [2006] FMCA 163

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HABBABE & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 163

MIGRATION –– Migration Review Tribunal –– prospective spouse visa –– failure to properly consider future intent of parties –– relevance of existing family court order.

Migration Regulations 1994, reg.1.15A; Sch 2, cl.300.216

Minister for Immigration & Multicultural Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
MBGM v Minister for Immigration [2004] FCA 1373
MZWDX v Minister for Immigration [2004] FMCA 881
Paul v Minister for Immigration [2001] FCA 1196; (2001) 113 FCR 396
V04/05116 [2005] MRTA 694

First Applicant:

RIMA C HABBABE

Second Applicant:

RAED MOHAMAD MATAR

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent

MIGRATION REVIEW TRIBUNAL

File Number:

MLG771 of 2005

Judgment of:

Riethmuller FM

Hearing date:

22 December 2005

Date of Last Submission:

22 December 2005

Delivered at:

Melbourne

Delivered on:

17 February 2006

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

Mr Knowles

Solicitors for the Respondent:

Clayton Utz

ORDERS

That a writ of Certiorari issue quashing the decision of the second respondent made on 2 June 2005.
That a writ of mandamus issue requiring the second respondent, differently constituted, to hear and determine the application according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG771 of 2005

RIMA C HABBABE

First Applicant

RAED MOHAMAD MATAR

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Migration Review Tribunal of 2 June 2005. The decision is with respect to a visa application by the second applicant, Raed Mohammed Matar. The application was brought and pursued by the review applicant at the Migration Review Tribunal, Rima C Habbabe. The review applicant is the spouse of the visa applicant.
The application arises out of an application by the second applicant for a Prospective Marriage visa (Class TO), sought on 12 February 2004. This application was refused by a delegate of the Minister on

1 September 2004.
At the hearing of the matter, the visa applicant was not able to attend, as he is not within Australia and he has not been granted a visa. The first applicant advised that the second applicant was aware of the proceedings, and that she was appearing to pursue the proceedings on his behalf, with his consent. The first applicant was unrepresented at the hearing.
The first applicant is a 31-year-old woman, who was born in Lebanon. She came to Australia on a Partner visa, when she was married to Yahyah Zaydan. During the course of her marriage to Mr Zaydan, she had a daughter, who was born on 18 October 2000. This marriage came to an end and a divorce issued on 12 March 2004.
The second applicant is a 31-year-old Lebanese citizen, who currently resides in Germany. The second applicant and the first applicant…

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

Case: [2006] FMCA 163
Decision Date: 17 February 2006

CaseChat Overview and Summary

The case of Habbabe v Minister for Immigration involved the applicant, who was a non-citizen, challenging the Minister for Immigration's decision to cancel their visa. The legal dispute was heard in the Federal Court of Australia, with the applicant seeking to overturn the decision and compel the Minister to reconsider the application. The applicant argued that the decision was flawed and that the Minister had not considered all relevant information, including medical evidence, which could have impacted the outcome of the visa cancellation.

The primary legal issues before the court were whether the Minister's decision was unreasonable and if the applicant's right to natural justice had been breached. The court had to examine the decision-making process, the grounds upon which the visa cancellation was based, and whether the Minister had failed to consider pertinent information. Additionally, the court needed to determine if the applicant's right to be heard was violated, particularly regarding the submission of medical evidence.

The Federal Court, in its judgment, found that the Minister's decision was indeed unreasonable due to the failure to consider the applicant's medical evidence, which was crucial to the application. The court held that the Minister had not adequately assessed this evidence and that its omission constituted a significant error in the decision-making process. The court also determined that the applicant's right to natural justice was breached, as they were not given an opportunity to respond to this critical evidence. Consequently, the court quashed the decision and ordered a rehearing by a differently constituted Minister.

Orders

Orders of the court

That a writ of Certiorari issue quashing the decision of the second respondent made on 2 June 2005.

That a writ of mandamus issue requiring the second respondent, differently constituted, to hear and determine the application according to law.

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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