FEDERAL COURT OF AUSTRALIA
Hanna v Minister for Immigration and Border Protection [2016] FCA 282
ORDERS
NSD 1555 of 2015 BETWEEN: JOSEPH HANNA
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
JAGOT J
DATE OF ORDER:
29 MARCH 2016
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
JAGOT J:
This is an appeal from orders of the Federal Circuit Court of Australia (the FCCA) dismissing an application for judicial review of a decision of the Migration Review Tribunal (the Tribunal). The Tribunal affirmed a decision refusing to grant the appellant a Partner (Migrant) (Class BC) visa (Hanna v Minister for Immigration and Border Protection [2015] FCCA 2856).
I consider that the appeal should be dismissed.
Background to the appeal
The appellant is a citizen of Lebanon. He applied for a Partner (Migrant) (Class BC) visa on 5 October…
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Details
- AGLC
- Hanna v Minister for Immigration and Border Protection [2016] FCA 282
- Case
- [2016] FCA 282
- Decision Date
CaseChat Overview and Summary
The case of Hanna v Minister for Immigration and Border Protection involved a Lebanese citizen, the appellant, who applied for a Partner (Migrant) visa following his marriage to the sponsor in Lebanon in 2010. The appellant was granted a Partner (Provisional) visa and subsequently arrived in Australia. However, the sponsor withdrew her sponsorship, alleging that she had been the victim of domestic violence at the hands of the appellant. Despite this, the appellant claimed that he was the victim of domestic violence and applied for a permanent resident visa. An independent expert concluded that the appellant was not a victim of family violence, and the Minister for Immigration and Border Protection refused the appellant's application on the basis that he had not established that he was the victim of domestic violence. The appellant sought judicial review of this decision in the Federal Circuit Court, which was dismissed.
The legal issues in this case revolved around whether the primary judge erred in dismissing the appellant's application for judicial review of the Minister's decision to refuse to grant a Partner visa. The court had to determine if the Tribunal misapplied the correct legal test in its review of the decision. The court also had to consider whether the Tribunal's reference to the repealed version of the legislation constituted a misapprehension of the task it was required to perform.
The court held that the reference to the repealed version of the legislation did not disclose any misapprehension by the Tribunal of the task it was required to perform. The error made was purely formal and could not be said to have affected, in any way, the function the Tribunal performed. The correct legal test was applied, and the legislative amendments came into force in 2009. References to the repealed legislation in reasons published in 2014 were undesirable but did not constitute a jurisdictional error. Therefore, the appeal should be dismissed with costs.
The court made two orders: (1) the appeal be dismissed, and (2) the appellant pay the first respondent's costs of the appeal as agreed or taxed. Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
The legal issues in this case revolved around whether the primary judge erred in dismissing the appellant's application for judicial review of the Minister's decision to refuse to grant a Partner visa. The court had to determine if the Tribunal misapplied the correct legal test in its review of the decision. The court also had to consider whether the Tribunal's reference to the repealed version of the legislation constituted a misapprehension of the task it was required to perform.
The court held that the reference to the repealed version of the legislation did not disclose any misapprehension by the Tribunal of the task it was required to perform. The error made was purely formal and could not be said to have affected, in any way, the function the Tribunal performed. The correct legal test was applied, and the legislative amendments came into force in 2009. References to the repealed legislation in reasons published in 2014 were undesirable but did not constitute a jurisdictional error. Therefore, the appeal should be dismissed with costs.
The court made two orders: (1) the appeal be dismissed, and (2) the appellant pay the first respondent's costs of the appeal as agreed or taxed. Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs of the appeal as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
I consider that the appeal should be dismissed. Background to the appeal The appellant is a citizen of Lebanon. He applied for a Partner (Migrant) (Class BC) visa on 5 October 2010, following his marriage in Lebanon on 22 August 2010 to the sponsor of this visa. On 10 June 2011, after the sponsor’s return to Australia on 28 October 2010, the appellant was granted a Partner (Provisional) (Subclass 309) visa, which enabled him to travel to Australia. He arrived in Australia on 28 June 2011. By letters dated 20 and 28 July 2011, however, the sponsor withdrew her sponsorship, claiming that she was the victim of domestic violence at the hands of the appellant. The then Department of Immigration and Citizenship (the Department) advised the appellant by letter (the date of which is not apparent) that his application for a permanent resident visa on spouse grounds could be considered despite the end of the relationship with his spouse in three circumstances, one of which was that he was a victim of domestic violence. By letters dated 14 October and 14 December 2011, information was provided on behalf of the appellant, accepting that the relationship with the sponsor was no longer continuing, but alleging that the appellant had been the victim of family violence perpetrated by the sponsor. In accordance with r 1.23(10)(c)(i) of the Migration Regulations 1994 (Cth) in force at the time (the Regulations), this claim was referred to an independent expert. The independent expert concluded that the appellant was not a victim of family violence - a view which the Minister for Immigration and Border Protection (the Minister) was required to accept pursuant to r 1.23(10)(c)(ii). Following an invitation to comment upon this adverse conclusion and the appellant’s response, a delegate of the Minister refused the appellant’s application on 2 January 2013 on the basis that while the delegate accepted that the sponsor and the appellant had been in a genuine and continuing relationship before the relationship had broken down, the appellant had not established that he was the victim of domestic violence and thus was not entitled to be granted a partner visa. On 16 January 2013, the appellant lodged an application for review of this decision with the Tribunal. As part of the process before the Tribunal, the appellant requested access to the files of the Department and the Tribunal and, on 24 January 2014, was granted access other than to certain pages which the Tribunal decided should not be released based on certificates issued under ss 375A and 376 of the Migration Act 1958 (Cth) (the Act) and s 14 of the Privacy Act 1988 (Cth). The appellant also lodged further information in support of his application. He then attended a hearing before the Tribunal on 5 February 2014. The Tribunal informed the appellant that it had to be satisfied that the appellant and the sponsor had had a mutual commitment to a shared life as a husband and wife to the exclusion of all others before the issue of the appellant being a domestic violence victim was relevant. The appellant gave information during and after the hearing (in response to an invitation from the Tribunal) in support of his case.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
In the present case the reference to the repealed version of the legislation does not disclose any misapprehension by the Tribunal of the task it was required to perform. The error made is purely formal and cannot be said to have affected, in any way, the function the Tribunal performed. The correct legal test was applied. This is not to say the error should be repeated. The legislative amendments came into force in 2009. References to the repealed legislation in reasons published in 2014 are undesirable to say the least.Conclusion I am not satisfied that the primary judge erred or that any jurisdictional error on the part of the Tribunal has been demonstrated or exists. Accordingly, the appeal should be dismissed with costs.
Ratio Decidendi
Legal Principle Established
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