Haque v Minister for Immigration - [2015] FCCA 1765

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAQUE & ORS v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1765

Catchwords:
MIGRATION – Skilled visa – subclass 886 – Public Interest Criterion 4005 – opinion by Medical Officer of Commonwealth – second applicant failed to satisfy criterion – autistic spectrum disorder – further opinion requested by applicants.

ADMINISTRATIVE LAW – Migration Review Tribunal – whether the Tribunal acted unreasonably in the manner and conduct of review – whether the Tribunal erred in relying on a medical opinion that did not conform to legislative requirements – whether the Tribunal failed to comply with the requirements of section 360 of the Migration Act 1958 – Tribunal’s decision affected by jurisdictional error – Tribunal erred by taking as correct a decision based on a serious mistake of fact – jurisdictional error in refusing the applicants’ request for an adjournment – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.359A, 359C, 360, 363A

Migration Regulations 1994 (Cth), reg.2.25A, cl.886.227 of sch.2, cl.4005 of sch.4

Blair v Minister for Immigration & Multicultural Affairs [2001] FCA 1014
Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413
House v R (1936) 55 CLR 499
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SabaBros Tiling Pty Ltd (2011) 194 FCR 11
Minister for Immigration & Citizenship v SZKTI (2008) 238 CLR 489
Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99
Re Minister for Immigration & Multicultural Affairs; ex parte Applicant S20/2002 (2003) 77 ALJR 1165
Sok v Minister for Immigration & Citizenship (2008) 238 CLR 251

First Applicant:

NASRIN HAQUE

Second Applicant:

SUMAYA SARAH BHUIYAN

Third Applicant:

SAKIR SIMON BHUIYAN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 323 of 2015

Judgment of:

Judge Smith

Hearing date:

2 June 2015

Date of Last Submission:

2 June 2015

Delivered at:

Sydney

Delivered on:

2 July 2015

REPRESENTATION

Solicitor for the Applicants:

Mr M. Jones, Parish Patience Immigration Lawyers

Counsel for the First Respondent:

Mr T. Reilly

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

A writ of certiorari issue directed to the Migration Review Tribunal (“Tribunal”) quashing the decision of the Tribunal dated 15 January 2015.
A writ of mandamus issue directed to the Tribunal requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 1 May 2014.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 323 of 2015

NASRIN HAQUE

First Applicant

SUMAYA SARAH BHUIYAN

Second Applicant

SAKIR SIMON BHUIYAN

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

Ordinarily, in determining whether or not to grant a visa, the Minister must determine whether he or she is satisfied that the visa applicant has satisfied the criteria for the grant of that visa. The same requirement is imposed on the second respondent (“Tribunal”) when…

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: [2015] FCCA 1765
Decision Date: 2 July 2015

CaseChat Overview and Summary

In *Haque v Minister for Immigration*, the applicants, Mr and Mrs Haque, sought judicial review of a decision by the Migration Review Tribunal (MRT) that upheld the refusal of their skilled visa application. The refusal was based on Public Interest Criterion 4005, which the second applicant, their child, failed to satisfy due to a diagnosis of autistic spectrum disorder. The applicants had requested a further medical opinion, which was refused by the MRT.

The central legal issues before the court were whether the MRT had acted unreasonably in its review process, specifically concerning its reliance on a medical opinion that allegedly did not conform to legislative requirements. The court was also asked to determine if the MRT had failed to comply with section 360 of the *Migration Act 1958* (Cth) and whether its decision was affected by jurisdictional error, including an error in treating a decision based on a serious mistake of fact as correct, and a jurisdictional error in refusing the applicants' request for an adjournment.

Justice Smith found that the MRT had indeed committed jurisdictional error. The Tribunal erred by relying on a medical opinion that was not properly formed in accordance with the legislative requirements for assessing Public Interest Criterion 4005. Furthermore, the refusal to grant an adjournment, which would have allowed the applicants to obtain a more comprehensive medical report, was also deemed a jurisdictional error. This error meant the MRT’s decision was affected by a serious mistake of fact and it failed to properly consider the evidence before it.

Consequently, Justice Smith issued writs of certiorari and mandamus. The writ of certiorari quashed the MRT's decision, and the writ of mandamus directed the MRT to reconsider the application according to law.

Orders