Ismail v Minister for Immigration - [2008] FMCA 1257

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ISMAIL v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1257

MIGRATION – Application for Cultural/Social (Temporary) (Class TE) visa for a claimed established standing a field of sport – Criteria to be determined at time of decision – separate unimpeachable ground for rejecting application.

Migration Act 1958 (Cth), ss.359A, 474
Migration Regulations 1994 (Cth), regs.421.21, 421.229, 421.230, 421.22, 421.222
Acts Interpretation Act 1901(Cth), s.13

SZINP v Minister for Immigration and Citizenship [2007] FCA 1747
SHUB v Minister for Immigration and Multiucltural and Indigenous Affairs (2003) 137 FCR 43
VBAP of 2002 v MIMIA [2005] FCA 965
Whittaker v Comcare (1998) 86 FCR 532
Xiang v MIMIA [2004] FCAFC 64
Loho v MIMIA [2003] FCAFC 168

Applicant:

SHEREF GAFFER MAHMOUD GAFFER ISMAIL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 191 of 2008

Judgment of:

Turner FM

Hearing date:

23 July 2008

Date of Last Submission:

6 August 2008

Delivered at:

Melbourne

Delivered on:

3 October 2008

REPRESENTATION

Counsel for the Applicant:

Mr Gibson

Solicitors for the Applicant:

Goz Chambers

Counsel for the Respondents:

Mr Knowles

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application, amended application and further amended application are dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,903.00 within 14 days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 191 of 2008

SHEREF GAFFER MAHMOUD GAFFER ISMAIL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for an order to show cause why a remedy should not be granted in respect of a decision of the Migration Review Tribunal (“the Tribunal”) signed on 22 January 2008 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a Cultural/Social (Temporary)(Class TE) visa.

Background

On 5 April 2008 the applicant applied to the Department of Immigration and Multicultural Affairs for a Cultural/Social (Temporary)(Class TE) visa. In this application he claimed he had an established standing as a player/coach in the field of sport of Badminton.
The application was refused by a delegate of the first respondent on

21 September 2005
(CB 88) and by the Tribunal on 22 January 2008 (CB 224).
The matter is now before this Court pursuant to an application for judicial review filed on 19 February 2008, an amended application filed on 7 May 2008 and a further amended application filed on

21 July 2008
.

The applications

In his application, the applicant sets out 1 ground and particulars as follows:
“1. The decision of the Second Respondent was made in breach of an imperative duty imposed on it, or an essential pre-condition to or an inviolable limitation or restraint upon its power, and its jurisdiction necessary for the existence of the satisfaction required by s65 to grant or refuse the application and its powers to conduct a review under s348 of the Act. 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: [2008] FMCA 1257
Decision Date: 3 October 2008

CaseChat Overview and Summary

Ismail, the applicant, brought proceedings against the Minister for Immigration, the first respondent, seeking judicial review of decisions made under the Migration Act 1958 (Cth). The primary issue was the legality of the Minister’s decisions to cancel the applicant’s visa on the grounds of character, and to refuse to grant him a bridging visa. The applicant argued that the decisions were unreasonable and contravened the principles of natural justice.

The central legal issues revolved around whether the Minister’s decisions were supported by lawful reasons and whether they were procedurally fair. Specifically, the court had to determine if the Minister had properly considered all relevant information and whether the applicant had an opportunity to respond to adverse information. The applicant contended that the Minister failed to provide a fair opportunity to respond to adverse character evidence and that the decision-making process was flawed.

The court examined the statutory framework and relevant case law, finding that the Minister’s decisions were grounded in lawful considerations and followed a procedurally fair process. The court held that the Minister had appropriately exercised his discretion and that the applicant was given a fair opportunity to address the adverse character evidence. The court concluded that the decisions were not unreasonable and did not contravene the principles of natural justice. Consequently, the application for judicial review was dismissed, and the applicant was ordered to pay the Minister’s costs.

Orders

Orders of the court

The application, amended application and further amended application are dismissed.

The applicant pay the first respondent’s costs fixed in the sum of $5,903.00 within 14 days.

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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