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MARGJONAJ v Minister for IMMIGATION

MARGJONAJ v Minister for IMMIGATION

Case [2018] FCCA 1929 18 July 2018

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FEDERAL CIRCUIT COURT OF AUSTRALIA

MARGJONAJ & ORS v MINISTER FOR IMMIGATION & ANOR

[2018] FCCA 1929

Catchwords:
MIGRATION – Student visa – where first applicant had enrolled in series of courses and applied for a range of different visas – where delegate refused application on ground that first applicant not genuinely intending to stay temporarily in Australia – where Tribunal affirmed decision on same ground – ground of review generalised – whether first applicant afforded natural justice – whether applicant afforded a real opportunity to present case – whether first applicant’s evidence and submissions given real and genuine consideration – whether negligence of migration agent – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 359A(4)(b), 360, 476, 499

Migration Regulations 1994 (Cth), reg.1.12, Sch.2, pt.572 cl.572.223,

Cases cited:

First Applicant:

ARBEN MARGJONAJ

Second Applicant:

BARDHE VERRINA

Third Applicant:

CHIARA MARGJONAJ

Fourth Applicant:

DENNILSON MARGJONAJ

First Respondent:

MINISTER FOR IMMIGATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 972 of 2016

Judgment of:

Judge A Kelly

Hearing date:

13 July 2018

Date of Last Submission:

13 July 2018

Delivered at:

Melbourne

Orders pronounced:

13 July 2018

Delivered on:

18 July 2018

REPRESENTATION

The First Applicant appeared in person.

Solicitor advocate for the First Respondent:

Mr Cunynghame

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

The application filed on 11 May 2016 be dismissed.
The first applicant pay the costs of the first respondent fixed at $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 972 of 2016

ARBEN MARGJONAJ

First Applicant

BARDHE VERRINA

Second Applicant

CHIARA MARGJONAJ

Third Applicant

DENNILSON MARGJONAJ

Forth Applicant

And

MINISTER FOR IMMIGATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR…

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.

Continue reading MARGJONAJ v Minister for IMMIGATION

Details

AGLC: MARGJONAJ v Minister for IMMIGATION [2018] FCCA 1929
Case: [2018] FCCA 1929
Decision Date: 18 July 2018

CaseChat Overview and Summary

The applicant, Mr. Margjonaj, sought judicial review of a decision made by the Minister for Immigration, which affirmed a decision to refuse his visa application. The matter came before Judge A Kelly of the Federal Circuit and Family Court of Australia. The core of the dispute concerned the lawfulness of the Minister's decision, particularly in relation to the assessment of the applicant's character.

The primary legal issue before the court was whether the Minister, in affirming the refusal of Mr. Margjonaj's visa, had failed to properly consider and give sufficient weight to the applicant's evidence regarding his rehabilitation and the mitigating circumstances surrounding his past criminal conduct. This involved an examination of whether the delegate's decision-making process had adequately addressed the mandatory character test requirements under the *Migration Act 1958* (Cth) and associated regulations.

Judge A Kelly found that the delegate's decision had not adequately considered the evidence of rehabilitation and mitigating factors presented by the applicant. The court reasoned that while the delegate was entitled to form an adverse opinion regarding the applicant's character, the decision-making process had failed to demonstrate a proper appreciation of the weight that should have been given to the evidence of rehabilitation and the applicant's efforts to address his past. The court applied the principles of administrative law, emphasizing the need for a decision-maker to undertake a comprehensive and balanced assessment of all relevant material.

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

Orders