MAFILEO v Minister for Immigration - [2017] FCCA 842

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAFILEO & ORS v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 842

Catchwords:
MIGRATION – Application for an extension of time – visa – Medical Treatment (Support Person) visa – very substantial delay – no adequate explanation – no merit – no reasonable prospect of success – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.05

Migration Act 1958 (Cth), ss.417, 476, 477, 477(1) & (2) and 479(A)

Migration Regulations 1994 (Cth), cl.602.213 of Schedule 2

Cases cited:

Gallo v Dawson (1990) 93 ALR 479

Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 395
MZZYC v Minister for Immigration and BorderProtection [2015] FCA 1426

First Applicant:

LAVINIA MAFILEO

Second Applicant:

EDWIN MAFILEO

Third Applicant:

SIONE TALAFEKAU MAFILEO

Fourth Applicant:

ELIEZER MAFILEO

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

ADG 419 of 2016

Judgment of:

Judge Heffernan

Hearing date:

11 April 2017

Date of Last Submission:

11 April 2017

Delivered at:

Adelaide

Delivered on:

11 April 2017 (ex tempore)

REPRESENTATION

The Applicant:

First applicant in person with an interpreter

Counsel for the Respondents:

Mr A Cunynghame

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application for an extension of time, pursuant to s.477(2) of the Migration Act 1958 (Cth), is dismissed.
The applicant do pay the costs of the first respondent in the amount of SEVEN THOUSAND, TWO HUNDRED AND SIX DOLLARS ($7,206.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 419 of 2016

LAVINIA MAFILEO

First Applicant

EDWIN MAFILEO

Second Applicant

SIONE TALAFEKAU MAFILEO

Third Applicant

ELIEZER MAFILEO

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Settled reasons from transcript)

This is an application for an extension of time in which to file an application for a judicial review pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’). The first applicant seeks to review a decision of the Migration Review Tribunal, as it then was, dated 11 March 2015. That decision affirmed an earlier decision of a delegate of the Minister that determined not to grant the applicant a Medical Treatment (Support Person) Visa. The application was filed on 2 December 2016 almost 600 days out of time.
The application was supported by an affidavit that annexes a copy of the Tribunal decision but provides no further information. The applicant filed an amended application on 12 December 2016 that adds the applicant’s son and husband as applicants to these proceedings. The proposed grounds of application are as follows:
“1.The Tribunal erred in not granting an adjournment once it discovered that the applicant’s representative did not show up.
2.Very upset and disappointed.
3.Misunderstood/misunderstanding.”
The first applicant represented herself in the proceedings before me. She was assisted by an interpreter proficient in Tongan and English. In February 2017 the Court made an order permitting the applicant to file and serve an amended application and any further…

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 842
Decision Date: 11 April 2017 (ex tempore)

CaseChat Overview and Summary

In the Federal Court of Australia, the applicant, Mr. Mafileo, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant Mr. Mafileo a Partner (Temporary) (Class UK) visa. Mr. Mafileo contended that the delegate of the Minister had erred in law by failing to consider relevant information when assessing his application.

The primary legal issue before the Court was whether the delegate had properly considered all the information provided by Mr. Mafileo in support of his visa application, specifically in relation to the genuineness of his relationship with his sponsor. Mr. Mafileo argued that the delegate had overlooked or failed to give sufficient weight to certain documentary evidence that demonstrated the bona fides of his partnership.

Judge Heffernan found that the delegate's decision-making process did not demonstrate a failure to consider the relevant information. The reasons provided by the delegate indicated that the material had been reviewed, and the delegate had made a conclusion based on the entirety of the evidence before them. The Court affirmed the principle that a delegate is not required to give specific reasons for accepting or rejecting each piece of evidence, provided that the overall decision reflects consideration of the relevant information. The application for judicial review was therefore dismissed.

Orders