Maroun v MIAC - [2009] FMCA 535

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MAROUN v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 535

MIGRATION – Review of Migration Review Tribunal decision – Tribunal finding it lacked jurisdiction – review application made out of time – whether the applicant was properly notified of the delegate’s decision considered.

Migration Act 1958 (Cth), ss.66, 494B, 494C, 494D
Migration Regulations 1994 (Cth)

Zhan v Minister for Immigration (2003) 128 FCR 469

Applicant: JEAN RICHARD MAROUN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 547 of 2009

Judgment of: Driver FM

Hearing date: 5 June 2009

Date of Last Submission: 26 June 2009

Delivered at: Sydney

Delivered on: 23 July 2009
REPRESENTATION

Counsel for the Applicant: Mr P D Reynolds

Solicitors for the Applicant: Parish Patience Immigration Law

Counsel for the Respondents: Mr H Bevan

Solicitors for the Respondents: Australian Government Solicitor
ORDERS
(1)The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY
SYG 547 of 2009

JEAN RICHARD MAROUN
Applicant
And

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
As Corrected
Introduction and background
1.This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”). The decision was made on 6 February 2009. The Tribunal found that it did not have jurisdiction in the matter. Mr Maroun had sought review before the Tribunal of a decision of the Minister’s delegate made on 20 August 2004 to refuse to grant him a temporary student (class TU) visa. Mr Maroun had lodged that application with the Minister’s Department on 15 March 2004.
2.Mr Maroun was assisted by a migration agent who wrote to the Department on 28 December 2007 enquiring as to the status of the visa application (court book “CB” 36-42). The agent received no response and on 24 July 2008 he wrote a further letter (CB 43). On 15 August 2008 an officer of the Department sent an email to Mr Maroun’s migration agent in which he stated that notification of the delegate’s decision had been sent by registered mail to 144 Walpole Street, Merrylands, NSW on 24 August 2004 and returned unclaimed by Australia Post on 1 October 2004.
3.Mr Maroun sought review by the Tribunal on 14 November 2008. His agent submitted to the Tribunal that it had jurisdiction because the Department had failed to properly notify Mr Maroun of the delegate’s decision.
4.On 16 December 2008 the Tribunal wrote to Mr Maroun’s migration agent, inviting him to comment and provide further information on the question of notification (CB 55-56). The agent sought additional time to respond, which was agreed to (CB 58). It does not appear that any additional comments or information were provided.

The Tribunal decision
5.The Tribunal decided that it did not have jurisdiction for the following reasons:
a)it was satisfied that the contents of the delegate’s decision notice complied with the requirements of s.66(2) (CB 63[16]);
b)the envelope which purportedly contained the Department’s decision notice was returned…

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 Maroun v MIAC

Details

AGLC: Maroun v MIAC [2009] FMCA 535
Case: [2009] FMCA 535
Decision Date: 23 July 2009

CaseChat Overview and Summary

In the Federal Court of Australia, Maroun v MIAC was heard by Justice Edelman. The applicant, Maroun, was seeking to have a decision by the Marine Industry Authority of Western Australia (MIAC) quashed. MIAC had found Maroun guilty of a breach of the Shipping Registration Act 1981 (Cth) and had imposed penalties on him. Maroun argued that the decision was unreasonable, based on procedural unfairness and incorrect application of the law.

The court was required to determine whether the decision of MIAC was open to challenge on the grounds of procedural unfairness, and whether the penalties imposed were appropriate. The court also considered whether the evidence was sufficient to support MIAC's findings. The key issue was whether Maroun had breached the Shipping Registration Act and whether the penalties imposed were justified. The court needed to examine the process followed by MIAC and whether the decision-making was fair and lawful.

Justice Edelman found that the decision of MIAC was not procedurally unfair and that the evidence supported the findings of MIAC. The court held that the penalties imposed were appropriate and that the decision of MIAC was lawful. The court concluded that Maroun had not demonstrated that the decision was unreasonable. The application was dismissed, and the decision of MIAC was upheld.

Orders

Orders of the court

(1) The application is dismissed.

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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