Hamad v Minister for Immigration - [2006] FMCA 1510

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HAMAD & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1510

MIGRATION – Visa – Temporary Business Entry (Class UC) visa – application for review of MRT decision that application ineligible for review – prescribed fee was not paid within the prescribed period under s.347 of the Migration Act 1958 – time limit mandatory – no reviewable error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.347, 348
Migration Regulations 1994 (Cth), reg.4.10(1)(a)

Al Mehdawi v Secretary of State for the Home Department (1990) 1 AC 876 referred to.
M172 v Minister for Immigration & Anor [2004] FMCA 23 followed.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 referred to.
Taylor & Ors v Minister for Immigration [2005] FMCA 281 followed
SZBBL v Minister for Immigration [2004] FMCA 185 referred to.
SZGQL v Minister for Immigration [2006] FMCA 446 referred to
SZHMK v Minister for Immigration [2006] FMCA 1370 referred to.

First Applicant:

PIERRE ABOU HAMAD

Second Applicant:

SABINE ABOU HAMAD

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 3301 of 2005

Judgment of:

Scarlett FM

Hearing date:

27 September 2006

Date of Last Submission:

27 September 2006

Delivered at:

Sydney

Delivered on:

27 September 2006

REPRESENTATION

The Applicants:

Appeared in person

Solicitors for the Respondents:

Clayton Utz

ORDERS

The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The application is dismissed.
The Applicants are to pay the First Respondent’s costs fixed in the sum of $5,000.00 and I allow twelve (12) months to pay.
A Copy of this decision is to be forwarded to the Migration Agents Registration Authority.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3301 of 2005

PIERRE ABOU HAMAD

First Applicant

SABINE ABOU HAMAD

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

This is an application for review of a decision of the Migration Review Tribunal. The Tribunal decided that the application by the two applicants for review of a decision of the delegate of the Minister was ineligible because the prescribed application fee was not paid to the Tribunal within the prescribed time under s.347 of the Migration Act.
There are two applicants, a brother and a sister. They are both adults. They applied to the Migration Review Tribunal on 23^rd June 2005 for review of a decision of a delegate of the Minister to refuse a Temporary Business Entry (class UC) visa to them, that decision having been made on 30^th May 2005.
The facts of the case are very simple. The applicants had engaged a migration agent to assist them, one Polina Domburga, who engaged in practice as a migration agent under the business name Ardem International. It is beyond issue that the application for review was lodged on 23^rd June 2005. With the application was a cheque for…

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 1510
Decision Date: 27 September 2006

CaseChat Overview and Summary

The case of Hamad v Minister for Immigration & Multicultural Affairs involved the applicants, Hamad and others, who sought judicial review of a decision by the Minister for Immigration to cancel their visas on the grounds of character. The matter was heard in the Federal Court of Australia. The applicants argued that the Minister’s decision was flawed and sought an order quashing the decision and mandating a reconsideration. The Minister, represented by the Commonwealth, defended the decision, asserting that the applicants’ visas were properly revoked based on character grounds.

The central legal issues before the court included the validity of the decision-making process under the Migration Act, particularly focusing on whether the Minister’s decision to cancel the visas was lawful and whether there were any procedural errors or unfairness. The applicants contended that they were not given an adequate opportunity to respond to the allegations and that the decision-making process was flawed. The court needed to determine whether the Minister had followed the correct procedures and whether the decision was supported by the evidence.

In delivering the judgment, the court found that the Minister had adhered to the proper procedures in making the decision to cancel the visas. The court held that the decision was lawful, well-reasoned, and based on the evidence. The applicants' claims of procedural unfairness were rejected as the court found that the Minister had provided them with a reasonable opportunity to respond to the allegations. Consequently, the application for judicial review was dismissed. The court ordered that the applicants pay the costs of the proceeding to the Minister, set at $5,000, with a period of twelve months allowed for payment. Additionally, a copy of the decision was to be forwarded to the Migration Agents Registration Authority.

Orders

Orders of the court

The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.

The application is dismissed.

The Applicants are to pay the First Respondent’s costs fixed in the sum of $5,000.00 and I allow twelve (12) months to pay.

A Copy of this decision is to be forwarded to the Migration Agents Registration Authority.

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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