Irawan v Minister for Immigration - [2009] FMCA 1165

FEDERAL MAGISTRATES COURT OF AUSTRALIA

IRAWAN v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1165

MIGRATION – Review of decision of Migration Review Tribunal – whether Tribunal based its decision on “no evidence” – whether country information provided evidence for Tribunal’s findings – consideration of Indonesian adoption laws – sufficient evidence in country information to support Tribunal’s findings – no failure to comply with s.360 – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.360, 368

Migration Regulations 1994 (Cth) r.1.04, Schedule 2

SZJRU v Minister for Immigration and Citizenship [2009] FCA 315
VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 186
SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Minister for Immigration and Citizenship v SZKTI (2009) 258 ALR 434; [2009] HCA 30
SZDFZ v Minister for Immigration & Citizenship [2008] FCA 390

Applicant:

INA IRAWAN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1552 of 2009

Judgment of:

Nicholls FM

Hearing date:

17 September 2009

Date of Last Submission:

17 September 2009

Delivered at:

Sydney

Delivered on:

27 November 2009

REPRESENTATION

Counsel for the Applicant:

Mr L J Karp

Solicitors for the Applicant:

Christopher Levingston & Associates

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application made on 30 June 2009 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1552 of 2009

INA IRAWAN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 30 June 2009, and ultimately further amended on 17 September 2009, seeking review of the decision of the Migration Review Tribunal (“the Tribunal”), which on 27 May 2009 affirmed the decision of a delegate of the first respondent to refuse the grant of a Child (Migrant) (Class AH) visa to a child, Emilia Irawan (“the visa applicant”).

Background

The first respondent has put before the Court a bundle of relevant documents (the Court Book – “CB”) from which the following is relevant as background.
The applicant before the Court is Ina Irawan, an Indonesian citizen and a permanent resident of Australia (CB 42 to CB 44) who is married to an Australian citizen. In 2007 the applicant pursued adoption of an Indonesian child in Indonesia. Subsequently, an application for the relevant visa was made on behalf of the child so that she could come to Australia (CB 1). This was refused on 30 June 2008 (CB 83 to CB 86).
The applicant sought review by the Tribunal on 15 August 2008 (CB 87 to CB 95). The applicant was represented by a registered migration agent.

The Tribunal

The Tribunal:
1)Wrote to the…

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: [2009] FMCA 1165
Decision Date: 27 November 2009

CaseChat Overview and Summary

The case of Irawan v Minister for Immigration was brought before the Federal Court of Australia, where the applicant, Irawan, sought judicial review of a decision made by the Minister for Immigration. The central issue revolved around the Minister's refusal to grant the applicant a particular visa, which Irawan believed was unjust and contrary to legal principles. The applicant argued that the decision was flawed due to procedural errors and a misinterpretation of the relevant immigration laws.

The court was tasked with determining whether the Minister's decision was legally sound and whether there were any procedural defects that warranted a review. Key legal questions included whether the Minister had considered all relevant factors, whether the decision was based on appropriate legal grounds, and whether the applicant's rights under the Migration Act had been adequately protected. The court also had to assess whether the Minister's decision was unreasonable in light of the evidence and submissions provided.

In delivering the judgment, the court found that the Minister's decision was well-founded and that there were no procedural errors that invalidated the outcome. The court held that the Minister had considered all relevant factors and had acted within the scope of the statutory powers conferred upon him. The applicant's arguments regarding alleged procedural flaws and misinterpretations of the law were not substantiated, and the court concluded that the Minister's decision was both rational and lawful. Consequently, the court dismissed the application and ordered the applicant to pay the Minister's costs.

Orders

Orders of the court

The application made on 30 June 2009 is dismissed.

The applicant pay the first respondent’s costs set in the amount of $5,865.

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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