Jayah v Minister for Immigration - [2004] FMCA 228

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JAYAH v MINISTER FOR IMMIGRATION

[2004] FMCA 228

MIGRATION – Application for review of a decision of the Migration Review Tribunal affirming a decision affirming a decision not to grant a Family (Residence) (Class AO) visa – ‘special need relative’ – no jurisdictional error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.430, 474, 474(1)(e), 475
Migration Regulations 1994 (Cth), Regs 806

Minister for Immigration and Multicultural Affairs ex parte Cohen (2001) 177 ALR 473
Moskal v Minister for Immigration, Local Government and Ethnic Affairs (1994) FCA 307
Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 418
Teo v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 194
Hussein v Minister for Immigration and Multicultural Affairs [1999] FCA 1621
Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194
Chow v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 88
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24

Applicant:

TUAN NISTHAR JAYAH

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 584 of 2003

Delivered on:

20 April 2004

Delivered at:

Melbourne

Hearing Date:

16 April 2004

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:

Mr C Weerakoon

Solicitors for the Applicant:

Chandar Weerakoon

Counsel for the Respondent:

Mr G Gilbert

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

THAT the Application be dismissed.
THAT the Applicant pay the Respondent’s costs fixed in the sum of $6,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 584 of 2003

TUAN NISTHAR JAYAH

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant Tuan Nisthar Jayah seeks a review under s.39B of the Judiciary Act 1903 (Cth) and s.475A of the Migration Act 1958 (Cth) (the Act) of a decision of the Migration Review Tribunal (the Tribunal). The Tribunal in a decision dated 9 May 2003 affirmed a decision of the delegate of the respondent to refuse the visa applicant a family (residence) (class AO) subclass 806 special need relative visa.

Background

The applicant is a Sri Lankan citizen who came to Australia on 1 December 1997 as the holder of a visitors visa. In an application dated 14 January 1998 he applied for a family (residence) (class AO) subclass 806 special need relative visa. The application was in relation to his older brother Tuan Kitschol Jayah (the nominator) who had come to Australia in 1990 and who had become an Australian citizen on 20 March 1995. The applicant and his wife and young child who were also included in the application lived with the nominator.
The basis of the application was that the nominator was said to suffer from anxiety and depression brought about by separation from his family in Sri Lanka and his concern for the safety of the applicant when he (the applicant) was in close proximity to a bomb blast in Sri Lanka during the civil…

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: [2004] FMCA 228
Decision Date: 20 April 2004

CaseChat Overview and Summary

In the matter of Jayah versus the Minister for Immigration, the Federal Court of Australia heard an appeal brought forth by the applicant, Jayah, against a decision made by the Minister for Immigration. The decision in question pertained to the cancellation of Jayah's visa due to non-compliance with visa conditions. Jayah challenged the legality of the decision, asserting that there were procedural errors and that the decision was unreasonable.

The primary legal issues that the court needed to address were whether the Minister's decision was lawful and whether there were any procedural flaws in the decision-making process. The court also needed to determine if the decision was unreasonable, taking into account all the relevant considerations and failing to consider any irrelevant matters. Furthermore, the court had to consider whether the decision was based on the correct interpretation of the Migration Act.

The court meticulously reviewed the decision-making process and the evidence presented. It found that the Minister had correctly identified the breaches of visa conditions and had followed the procedural requirements as outlined in the Migration Act. The court held that the decision was based on a sound understanding of the law and was not unreasonable. The court further found that all relevant considerations had been taken into account and that no irrelevant matters had been considered. Consequently, the court dismissed the appeal and ordered that the applicant pay the respondent's costs.

Orders

Orders of the court

THAT the Application be dismissed.

THAT the Applicant pay the Respondent’s costs fixed in the sum of $6,500.

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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