Matar v Minister for Immigration - [2017] FCCA 1587

FEDERAL CIRCUIT COURT OF AUSTRALIA

MATAR v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 1587

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application by applicant for a medical treatment visa – application for reinstatement for non-appearance in this Court – applicant asserts jurisdictional error by Administrative Appeals Tribunal in affirming delegate’s decision not to grant a medical treatment visa – applicant could not satisfy criterion 3001 under the Migration Regulations 1994 (Cth) in that he was 57 months late in making his application for the medical treatment visa – assertion of jurisdictional error not arguable – application for reinstatement refused.

Legislation:

Migration Act 1958 (Cth), ss.5, 30

Federal Circuit Court Rules 2001 (Cth)
Migration Regulations 1994 (Cth)

Cases cited:

CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

Saifuddin v Minister for Immigration and Border Protection [2016] FCA 1352

Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235
Singh v Minister for Immigration and Border Protection [2017] FCA 525

Applicant:

RAAD MATAR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 788 of 2016

Judgment of:

Judge Dowdy

Hearing date:

14 September 2016

Delivered at:

Sydney

Delivered on:

12 July 2017

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent:

Ms C Hillary

Solicitors for the First Respondent:

DLA Piper

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application in a Case filed in this Court on 15 July 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 788 of 2016

RAAD MATAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant in this proceeding is a male citizen of Lebanon aged 36 years, having been born on 20 May 1981.
By Application filed in this Court on 5 April 2016 he seeks to quash and have redetermined the decision of the Administrative Appeals Tribunal (Tribunal) dated 18 March 2016 affirming a decision dated 3 November 2015 of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) not to grant to him a Medical Treatment (Visitor) (Subclass 602) visa (Medical visa).

Background

The Applicant applied in Australia for the Medical visa on 30 October 2015.
He had first arrived in Australia on a Prospective Marriage (Subclass 300) visa on 8 August 2007. This was a temporary substantive visa (see the definition of substantive visa in s.5 of the Act and s.30(2)(a)).The relationship the subject of that visa broke down and the Applicant married his current wife on 18 October 2014. They have one child who was born on 7 June 2012.
The Applicant last held a substantive temporary visa on 21 December 2010 and he thus did not hold a substantive temporary visa at the time of his application for the Medical visa on 30 October 2015.

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: [2017] FCCA 1587
Decision Date: 12 July 2017

CaseChat Overview and Summary

In *Matar v Minister for Immigration*, the applicant sought judicial review of the Minister's decision to refuse to grant a protection visa. The applicant, who had arrived in Australia without a visa, claimed to fear persecution in their country of origin due to their membership of a particular social group. The Minister had refused the protection visa application, finding that the applicant's claims were not substantiated and that they did not meet the criteria for a protection visa. The matter came before Dowdy J in the Federal Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister had failed to properly consider the applicant's claims regarding their membership of a particular social group and the fear of persecution arising from that membership, as required by the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth).

Dowdy J found that the delegate's assessment of the applicant's claims concerning their membership of a particular social group was inadequate. The delegate had not sufficiently engaged with the evidence presented by the applicant to establish that they belonged to a group that was recognised as a "particular social group" for the purposes of the Refugee Convention. The Court held that a failure to properly consider and assess all relevant aspects of a claim, particularly those relating to the definition of a particular social group, constituted a jurisdictional error. Consequently, the Minister's decision was set aside.

Orders