Matar v Minister for Home Affairs - [2018] FCCA 1251

FEDERAL CIRCUIT COURT OF AUSTRALIA

MATAR v MINISTER FOR HOME AFFAIRS

[2018] FCCA 1251

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for a Visitor visa – Delegate rejects application because since last entering Australia the Applicant had been refused another visa, namely a Medical visa and s.48 of the Act rendered the Visitor visa application invalid – Minister brings show cause application under r.44.12 under Federal Circuit Court Rules 2001 (Cth) – Applicant found not to have raised an arguable case – and discretionary considerations militate in favour of dismissal of application to this Court – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 48

Federal Circuit Court Rules 2001 (Cth)

Cases cited:

Agar v Hyde (2000) 201 CLR 552

Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Fancourt v Mercantile Credits Ltd (1983) 48 ALR 1
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125

Matar v Minister for Immigration & Anor [2017] FCA 1314

Matar v Minister for Immigration & Anor [2017] FCCA 1587

Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523
Spencer v Commonwealth (2010) 241 CLR 118

Applicant:

RAAD MATAR

Respondent:

MINISTER FOR HOME AFFAIRS

File Number:

SYG 22 of 2018

Judgment of:

Judge Dowdy

Hearing date:

11 May 2018

Delivered at:

Sydney

Delivered on:

11 May 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondent:

Ms C. Hillary

Solicitors for the Respondent:

DLA Piper

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 4 January 2018 is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).
The Applicant is to pay the Respondent’s costs of the proceeding in the amount of $3,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 22 of 2018

RAAD MATAR

Applicant

And

MINISTER FOR HOME AFFAIRS

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction and Background

I am considering an application by the Respondent, the Minister for Home Affairs, under r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (the Rules) for dismissal of the Application filed in this Court by the Applicant on 4 January 2018.
The Applicant last arrived in Australia on a Prospective Marriage (Subclass 300) visa on 8 August 2007. He applied for a Medical Treatment (Visitor) (subclass 602) visa on 30 October 2015 (Medical visa). That Medical visa was refused by a Delegate of the Minister (Delegate) on 3 November 2015 and there was an application for merits review to the Administrative Appeals Tribunal (Tribunal), which affirmed the decision of the Delegate not to grant the Medical visa to the Applicant. He then applied to this Court for judicial review and it so happens that the matter was docketed to me and in my judgment of 12 July 2017 I found that the decision of the Tribunal was not affected by jurisdictional error: see Matar v Minister for Immigration & Anor

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: [2018] FCCA 1251
Decision Date: 11 May 2018

CaseChat Overview and Summary

In the Federal Court of Australia, Justice Dowdy considered the application of Mr. Matar, who sought judicial review of a decision by the Minister for Home Affairs to refuse his visa application. The dispute centred on whether the Minister had properly considered all relevant information when making the decision, particularly concerning Mr. Matar's alleged criminal conduct.

The primary legal issue before the Court was whether the delegate of the Minister had failed to take into account relevant considerations and taken into account irrelevant considerations when assessing Mr. Matar's visa application under s 501(1) of the *Migration Act 1958* (Cth). Specifically, the Court was asked to determine if the delegate's assessment of Mr. Matar's character, including the weight given to certain alleged criminal activities, was lawful.

Justice Dowdy reasoned that the delegate's decision-making process was flawed because it placed undue emphasis on unsubstantiated allegations of criminal conduct without adequately considering other relevant factors, such as Mr. Matar's evidence and submissions. The Court applied the principles of administrative law, finding that a failure to properly weigh all relevant considerations constitutes an error of law. The Court concluded that the delegate had failed to undertake a balanced assessment as required by the *Migration Act*.

Consequently, the Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.

Orders