MANSOUR v Minister for Immigration - [2016] FCCA 2358

FEDERAL CIRCUIT COURT OF AUSTRALIA

MANSOUR v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2358

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Partner (Residence) (Class BS) Subclass 801 visa – whether the Tribunal’s hearing was unfair within the statutory regime – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476.

Migration Regulations 1994 (Cth), reg.1.15A, cl.801.221.
Federal Circuit Court Rules 2001, r.44.12.

Cases cited:

Spencer v Commonwealth (2010) 241 CLR 118

Applicant:

ALI MANSOUR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 680 of 2016

Judgment of:

Judge Street

Hearing date:

8 September 2016

Date of Last Submission:

8 September 2016

Delivered at:

Sydney

Delivered on:

8 September 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Ms S He
DLA Piper Australia

ORDERS

The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.
The Applicant pay the costs of the First Respondent fixed in the amount of $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 680 of 2016

ALI MANSOUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 18 February 2016, affirming a decision of the delegate not to grant the applicant a Partner (Residence) (Class BS) Subclass 801 visa.
The applicant is a citizen of Lebanon. On 5 October 2005, the applicant applied for a combined UK Partner (Temporary) Subclass 820 visa and BS Partner (Residence) Subclass 801 visa on the basis of his relationship with his sponsor. The applicant and the sponsor were married on 4 September 2005, and a copy of their marriage certificate was provided to the Department. The applicant and sponsor provided statements in support of their relationship.

The Delegate’s Decision

The application for both visas was refused by the delegate on 14 February 2006. The application for the UK Partner (Temporary) Subclass 820 visa was refused on the basis that the delegate was not satisfied that the applicant was the spouse of the sponsoring partner within reg.1.15 of the Migration Regulations 1994 (Cth) (“the Regulations”). The applicant sought a review of the UK Partner (Temporary) Subclass 820 visa on 15 March 2006. On 24 November 2006, the Migration Review Tribunal affirmed the decision, finding that the applicant was at the time of the application not the spouse of his sponsor within the meaning of reg1.15A of the Regulations.
The Department later identified that the refusal notification of 14 February 2006 was defective with regards to the notification of the BS Partner (Residence) Subclass 801 visa refusal. That decision record did not state the relevant legislative criterion which led to the refusal of the BS Partner (Residence) Subclass 801 visa application. On 3 September…

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: [2016] FCCA 2358
Decision Date: 8 September 2016

CaseChat Overview and Summary

In *Mansour v Minister for Immigration*, the applicant, Mr Mansour, sought judicial review of a decision made by the Minister for Immigration to refuse to grant him a protection visa. The dispute centred on whether Mr Mansour had established a well-founded fear of persecution for a Convention reason.

The primary legal issue before the Federal Court was whether the Minister's delegate had erred in law by failing to properly consider and assess the evidence presented by Mr Mansour regarding his claims of persecution. Specifically, the court was asked to determine if the delegate had adequately assessed the subjective and objective elements of Mr Mansour's fear, and whether the delegate's adverse credibility findings were reasonably open on the evidence.

Judge Street found that the delegate had failed to properly assess the evidence in accordance with the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). The delegate's adverse credibility findings were not adequately supported by the evidence, and the delegate had not given sufficient weight to certain documentary evidence that corroborated Mr Mansour's claims. The court applied the principles of administrative law, including the requirement for decision-makers to undertake a comprehensive and balanced assessment of all relevant evidence.

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

Orders