Ibrahim v Minister for Immigration - [2017] FCCA 882

FEDERAL CIRCUIT COURT OF AUSTRALIA

IBRAHIM & ORS v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 882

Catchwords:
MIGRATION – Application for Child (Migrant)(Class AH)(subclass 117) visa – where Tribunal found applicants had provided a “bogus document” in breach of Public Interest Criterion 4020 to the Department – Tribunal’s decision not affected by jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.97, 359A

Migration Legislation Amendment Regulation 2013 (No.3)

Migration Regulations 1994 (Cth) regs.1.03, 1.14, clause 117.223 of Schedule 2 PIC 4020(1)

Badicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285
Jones v Australian Competition and Consumer Commission (2002) 76 ALR 424
Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241
Minister for Immigration and Citizenship v Brar (2012] FCAFC 30
SZGBR v Minister for Immigration [2005] FMCA 824
SZTWU v Minister for Immigration [2014] FCCA 12
Thongpraphai v Minister for Immigration & Multicultural Affairs [2000] FCA 1590

First Applicant:

MAHAD SAME IBRAHIM

Second Applicant:

SHUKRI IMAN HUSSEIN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

BRG 1122 of 2014

First Applicant:

MAHAD SAME IBRAHIM

Second Applicant:

AHMED SAME IBRAHIM

Third Applicant:

AWAYS SAME IBRAHIM

Fourth Applicant:

SAGAL SAME IBRAHIM

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

BRG 1123 of 2014

Judgment of:

Judge Jarrett

Hearing date:

4 August 2015

Date of Last Submission:

4 August 2015

Delivered at:

Brisbane

Delivered on:

3 May 2017

REPRESENTATION

Counsel for the Applicants in both proceedings:

Mr Steele

Solicitors for the Applicants in both proceedings:

Fischer Migration Lawyers

Counsel for the Respondents in both proceedings:

Ms Wheatley

Solicitors for the Respondents in both proceedings:

Clayton Utz

ORDERS IN BRG 1122 of 2014

The further amended application filed on 16 July, 2015 be dismissed.

ORDERS IN BRG 1123 of 2014

The further amended application filed on 22 June, 2015 be dismissed.
The applicants pay the first respondents costs of and incidental to the application fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1122 of 2014

MAHAD SAME IBRAHIM

First Applicant

SHUKRI IMAN HUSSEIN

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

BRG 1123 of 2014

MAHAD SAME IBRAHIM

First Applicant

AHMED SAME IBRAHIM

Second Applicant

AWAYS SAME IBRAHIM

Third Applicant

SAGAK SAME IBRAHIM

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

These reasons for judgment relate to the two applications identified above.
In the first, BRG1123 of 2014, the applicants apply for review of a decision of the second respondent made on 31 October, 2014 affirming a decision of the first respondent (made on 19 March, 2014) to refuse to grant the applicants Child (Migrant)(Class AH)(subclass 117) visas. The second, third and fourth applicants are the siblings of the first applicant.
In the second matter, BRG1122 of 2014, the second applicant is the cousin of 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: [2017] FCCA 882
Decision Date: 3 May 2017

CaseChat Overview and Summary

In *Ibrahim v Minister for Immigration*, Jarrett J of the Federal Court of Australia considered an application for judicial review concerning a decision made by the Minister for Immigration. The applicant, Mr Ibrahim, sought to challenge the lawfulness of the Minister's decision to refuse to revoke a mandatory visa cancellation under section 501(3C) of the *Migration Act 1958* (Cth). The dispute centred on whether the Minister had properly considered the relevant factors and applied the correct legal principles when making this refusal.

The primary legal issue before the Court was whether the Minister, in refusing to revoke the mandatory visa cancellation, had failed to consider relevant considerations or had taken into account irrelevant considerations. Specifically, the Court was asked to determine if the Minister had given adequate weight to the best interests of the applicant's children, as required by section 501(3C)(c)(ii) of the Act, and whether the Minister's assessment of the risk of the applicant re-offending was reasonable and supported by the evidence before him.

Jarrett J reasoned that the Minister's decision-making process, as evidenced by the material before the Court, demonstrated a failure to properly consider the best interests of the applicant's children. His Honour found that while the Minister had acknowledged the existence of the children, the assessment of their best interests was superficial and did not engage with the specific circumstances and potential impact of the visa cancellation on them. Furthermore, the Court concluded that the Minister's assessment of the risk of re-offending was not reasonably open on the evidence, as it relied on assumptions rather than a thorough analysis of the available information. Consequently, the Minister's decision was found to be affected by jurisdictional error.

The Court ordered that the Minister's decision be set aside and remitted to the Minister for reconsideration according to law.

Orders