Mardini v Minister for Immigration - [2005] FMCA 1409

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MARDINI v MINISTER FOR IMMIGRATION

[2005] FMCA 1409

MIGRATION – Review of Migrant Review Tribunal decision – refusal of a Partner (Migrant) (Class BC) visa – no jurisdictional error – leave sought for a “McKenzie Friend” – discussion of whether appropriate in the circumstances – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.65, 474
Migration Regulations 1994 (Cth), regs.1.23(1)(g), 1.23(2)(b), 1.24, 1.25, 1.26

McKenzie v McKenzie (1970) 3ALL ER 1034
R v Leicester City Justices; Ex parte Barrow & Anor (1991) 3 ALL ER 935
Smith v R (1987) 71 ALR 631
Cakmak v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 257
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Theunissen v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1097

Meroka v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 482
Ibrahim v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1279

Applicant:

RAYMOND MARDINI

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 2231 of 2004

Delivered on:

30 September 2005

Delivered at:

Sydney

Hearing date:

1 September 2005

Judgment of:

Lloyd-Jones FM

REPRESENTATION

The applicant appeared in person, with the assistance of Mr Toufic Laba-Sarkis, with leave.

Counsel for the Respondent:

Ms T Wong

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2231 of 2004

RAYMOND MARDINI

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 16 July 2004 for a review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 23 June 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 28 April 2003 to refuse to grant the applicant a Partner (Migrant) (Class BC) visa. The applicant seeks unstated relief against the decision of the Tribunal.

Background

Ms T Wong of Counsel, appearing for the respondent, prepared and filed written submissions which contained an effective summary of the background to these proceedings and the applicant’s claims. I have adopted the summary and reproduced the same as follows:
a)
On 25 July 2002 the applicant, a citizen of Lebanon, made an application for a Partner (Migrant) (Class BC) visa to the Minister for Immigration & Multicultural & Indigenous Affairs (“MIMIA”) (Court Book pp.1-18). On 28 April 2003 the delegate refused to grant the applicant a Partner (Migrant) (Class BC) visa, principally on the basis that the applicant had failed to demonstrate that…

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: [2005] FMCA 1409
Decision Date: 30 September 2005

CaseChat Overview and Summary

In the case of Mardini v Minister for Immigration, the applicant, Mr Mardini, sought to challenge the decision of the Tribunal which had found him ineligible for a Class BC visa under the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth). Mr Mardini argued that the Tribunal had erred in its interpretation and application of the relevant legislative provisions in reaching its decision. Specifically, the applicant contended that the Tribunal should have taken into account additional evidence and had incorrectly assessed the credibility of certain statements made by the applicant’s former partner, Claudine Mardini.

The primary legal issue before the court was whether the Tribunal had erred in its interpretation and application of the relevant legislative provisions in determining that Mr Mardini did not meet the criteria for a Class BC visa. This included examining whether the Tribunal had correctly interpreted the definition of a "competent person" under reg.1.21 of the Regulations, and whether it had appropriately considered the evidence presented by the applicant. The court also needed to determine if the Tribunal had erred in accepting statements from Claudine Mardini without subjecting her to cross-examination.

The court found that the Tribunal had correctly interpreted and applied the relevant provisions of the Regulations in reaching its decision. The court held that the reports submitted by Dr Ben Teoh and Dr Hany Hanna did not qualify as evidence from "competent persons" as defined in reg.1.21(1)(a). The court further found that the Tribunal had not erred in accepting the statements from Claudine Mardini without cross-examination, as there was no jurisdictional error in the Tribunal’s process. The court emphasised that the Tribunal had carefully considered the evidence and had provided adequate reasons for its decision, which were consistent with the statutory criteria.

The court dismissed the application and ordered that the applicant pay the respondent’s costs and disbursements of and incidental to the application. The decision underscored the importance of adhering to the statutory criteria and the proper interpretation of legislative provisions in migration matters.

Orders

Orders of the court

The application is dismissed.

The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Reg.1.21 of the Regulations states as follows:1.21Interpretation (1)In this Division:"competent person" means:(a)in relation to domestic violence committed against an adult:(i) a person registered as a medical practitioner under a law of a State or Territory providing for the registration of medical practitioners; or(ii) a person registered as a psychologist under a law of a State or Territory providing for the registration of psychologists; or(iii) a person who:(A)is a registered nurse within the meaning of section 3 of the Health Insurance Act 1973; and(B)is performing the duties of a registered nurse; or(iv) a person who:(A)is a member of the Australian Association of Social Workers or is recognised by that Association as a person who is eligible to be a member of that Association; and(B)is performing the duties of a social worker; or(v) a person who is a court counsellor under the Family Law Act 1975 ; or(vi) a person holding a position of a kind described in subregulation (2); or(b)…statutory declaration means a statutory declaration under the Statutory Declarations Act 1959.violence includes a threat of violence.(2)The positions referred to in subparagraph (a) (vi) of the definition of competent person in subregulation (1) are:(a)manager or coordinator of:(i) …(ii) a crisis and counselling service that specialises in domestic violence; or(b)a position with:(i) decision-making responsibility for:(A)…(B)a crisis and counselling service that specialises in domestic violence;that has a collective decision-making structure; and(ii) responsibility for matters concerning domestic violence within the operations of that refuge or crisis and counselling service The applicant sought to satisfy the requirements of this regime by presenting reports from “competent persons” namely, Dr Ben Teoh, MBBS (UNSW) MPsych (UNSW) FRANZCP FAChAM (RACP) (Consultant Psychiatrist and Physician in Addiction Medicine) (CB pp.232-234) and Dr Hany Hanna (MBBch, AMEC, D.A.(ENG)) (Registered Medical Practitioner) (CB pp.235-236). The qualifications and descriptions of both these doctors clearly place them within reg.1.21(1)(a)(i) as the category of “competent person”. This was clearly in breach of the requirements of reg.1.24(2)(a). The Tribunal’s findings are set out in the decision under the heading of “Findings and Reasons” at paragraphs 40-44 inclusive. The Tribunal clearly stated its reason for the decision that the applicant was not able to satisfy the prescribed criteria for any Class BC visa and consequently a grant of that class of visa must be refused under s.65 of the Act (CB p.259). The Tribunal correctly applied the criteria of the Regulations and made reference to the authorities to support this interpretation. The Tribunal is not required to take any additional matters into consideration in its analysis and has not overlooked or incorrectly interpreted this regime. Ground 1 of the applicant’s amended application alleged that the Tribunal fell into jurisdictional error on the basis that it accepted the letter to the Department by Claudine Mardini stating that the relationship with the applicant had ended and that the applicant was only with her to gain entry to Australia. The alleged error was that the Tribunal accepted the statement of Claudine Mardini without cross examination to verify this information. The ground was not particularised and it was not clear whether it was being suggested that Claudine Mardini or Raymond Mardini should have been formally subjected to cross examination under oath.