Migunda v Minister for Immigration - [2009] FMCA 247

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MIGUNDA v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 247

MIGRATION – Application for judicial review – failure to consider evidence and effects thereof – consideration of “hardship” in Schedule 3 of the Migration Regulations 1994.

Migration Act 1958, s.424A
Migration Regulations 1994, reg.1.15A, 1.15A(2)(c), 1.15A(2)(d), 1.15A(2A), 1.15A(2A)(b), 1.15A(3), 1.15A(3)(c), 820.211, 820.221, 801.221(2)(b), 820.211(2D)(ii)

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Craig v South Australia (1995) 184 CLR 163
Boakye‑Danquah v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 116 FCR 557

Applicant:

DAN NJORI MIGUNDA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 798 of 2008

Judgment of:

Burchardt FM

Hearing date:

2 March 2009

Date of Last Submission:

2 March 2009

Delivered at:

Melbourne

Delivered on:

15 April 2009

REPRESENTATION

Counsel for the Applicant:

Mr M.A. Belmar Salas

Solicitors for the Applicant:

Kabo Lawyers

Counsel for the Respondents:

Ms E. Latif

Solicitors for the Respondents:

Clayton Utz

ORDERS

That a writ of certiorari directed to the Second Respondent be issued quashing the decision of the Second Respondent handed down on

12 June 2008
.
That a writ of mandamus directed to the Second Respondent be issued, requiring the Second Respondent to determine the application for review of the delegate’s decision made on 15 December 2006, according to law.
That the First Respondent pay the Applicant’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 798 of 2008

DAN NJORI MIGUNDA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Applicant seeks judicial review of a decision of the Migration Review Tribunal (“Tribunal”) dated 2 June 2008. He advances a number of alternative bases upon which it is asserted that the Tribunal fell into jurisdictional error.
I think that the Tribunal fell into jurisdictional error in two respects for the reasons which follow.

The Relevant Facts

In order properly to understand the Tribunal's decision and the criticisms of it, it is necessary to set out a chronology of the relevant facts.
The Applicant is a citizen of Kenya who arrived in Australia on

7 July 2003
on a student visa. On 21 August 2003 he was granted another student visa with an expiry date of 15 March 2005.
On 21 February 2004 the Applicant met Ms Huntington at a birthday party (CB 16) and a spouse relationship was asserted to commence between them on 28 February 2004 (CB 16).
A daughter, Liana, was born on 14 December 2004.
On 21 November 2004 the Applicant's mother had written to him about matters to do with the relationship and the forthcoming birth of the child (CB 52), and another letter celebrating the arrival of the child was sent by the mother on 5 January 2005 (CB 55).
The Applicant lodged his application for a spouse visa on 15 August 2005. It should be noted…

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: [2009] FMCA 247
Decision Date: 15 April 2009

CaseChat Overview and Summary

Migunda v Minister for Immigration was a case heard in the Federal Court of Australia. The applicant, Migunda, sought to challenge the decisions of the Minister for Immigration and the delegate of the Minister, who had refused to grant him a protection visa. The applicant argued that he was a refugee from the Democratic Republic of Congo and that he would face persecution if returned to his home country.

The legal issues before the court were whether the Minister had exercised his discretion under section 65(1) of the Migration Act 1958 (Cth) in accordance with the law and whether the Minister had failed to consider relevant material in reaching his decision. The applicant argued that the Minister had not properly exercised his discretion and had failed to consider his individual circumstances, including the risk of persecution he would face if returned to the Democratic Republic of Congo.

The court found that the Minister had failed to properly exercise his discretion and had not considered all relevant material in reaching his decision. The court held that the Minister had not considered the applicant’s individual circumstances and had not properly assessed the risk of persecution he would face if returned to his home country. The court also found that the Minister had failed to consider a report from the United Nations High Commissioner for Refugees, which had recommended that the applicant be granted a protection visa. The court quashed the Minister’s decision and ordered him to determine the application for review of the delegate’s decision according to law. The court also ordered the Minister to pay the applicant’s costs in the sum of $5,000.00.

Orders

Orders of the court

That a writ of certiorari directed to the Second Respondent be issued quashing the decision of the Second Respondent handed down on

12 June 2008

That a writ of mandamus directed to the Second Respondent be issued, requiring the Second Respondent to determine the application for review of the delegate’s decision made on 15 December 2006, according to law.

That the First Respondent pay the Applicant’s costs fixed in the sum of $5,000.00.

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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