Mujedenovski v Minister for Immigration and Citizenship

Case [2009] FCAFC 149


FEDERAL COURT OF AUSTRALIA

Mujedenovski v Minister for Immigration and Citizenship [2009] FCAFC 149

VITURYE MUJEDENOVSKI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and ADMINISTRATIVE APPEALS TRIBUNAL

VID 217 of 2009

RYAN, MANSFIELD & TRACEY JJ
23 OCTOBER 2009
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 217 of 2009

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

VITURYE MUJEDENOVSKI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGES:

RYAN, MANSFIELD & TRACEY JJ

DATE OF ORDER:

23 OCTOBER 2009

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.The matter be remitted to the Administrative Appeals Tribunal for reconsideration according to law.

3.The first respondent pay to the appellant her costs of the appeal and of the application at first instance.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 217 of 2009

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

VITURYE MUJEDENOVSKI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGES:

RYAN, MANSFIELD & TRACEY JJ

DATE:

23 OCTOBER 2009

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

  1. This appeal is from orders of a Judge of the Court dismissing an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal). The Tribunal had affirmed a decision of a delegate of the Minister to refuse a contributory parent/migrant visa to the appellant’s father, Mr Selimi. The outcome of the appeal depends on the proper construction of s 501(6) of the Migration Act 1958 (Cth) (the Act) and its application to the conduct of Mr Selimi.

  2. For the Mujedenovski family, the appeal in effect represents a final opportunity to reunite in Australia.  The father of the family, Mr Selimi, is presently living in Macedonia with his wife and one of their four children.  Their remaining children live in Australia, together with their six grand children.  If the appeal is unsuccessful, Mr Selimi will be unable to migrate to Australia and the family will remain geographically separated, presumably for other than temporary periods when they can be together.

  3. As sometimes occurs, however, that outcome may be ordained by s 501(6) of the Act properly construed and applied to an assessment of Mr Selimi’s character.

  4. It is necessary to explain why.

  5. Mr Selimi is now 54 years old.  He is a Macedonian citizen.  He married in 1973.  He and his wife had four children, all now adults.  Three of the children, including the appellant (one of his daughters) live in Melbourne.  The fourth still lives in Macedonia.  Mr Selimi and his wife were divorced in Macedonia in December 1994.  Later in December 1994, Mr Selimi came to Australia to attend the appellant’s wedding.  He came to Australia on…

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AGLC
Mujedenovski v Minister for Immigration and Citizenship [2009] FCAFC 149
Case
[2009] FCAFC 149
Decision Date

CaseChat Overview and Summary

In the case of Mujedenovski v Minister for Immigration and Citizenship, the appellant, Mujedenovski, appealed a decision of the Administrative Appeals Tribunal (AAT) which had dismissed his application for review of a decision to cancel his visa. The primary issue before the court was whether the AAT had correctly applied the statutory criteria in assessing the appellant’s character under s 501(6)(c) of the Migration Act 1958 (Cth). Specifically, the court needed to determine whether the AAT properly considered the appellant’s conduct and character, and whether it appropriately exercised its discretion under the statute.

The court examined the AAT’s reasons for decision and found that the Tribunal had erred in its interpretation and application of the statutory criteria. Although the AAT had made a factual error in its reasons, the court found that it was clear from the Tribunal’s overall reasoning that it had assessed the appellant’s conduct as serious, grave, and extended, concluding that he did not possess enduring moral qualities. Despite using the phrase “weaknesses or blemishes in character,” which had been applied in previous cases to minor infractions, the AAT had considered the totality of the evidence, including the appellant’s false testimony, leading to the conclusion that he was not of good character.

The court rejected the argument that the adverse findings made by the AAT during the exercise of discretion should be considered as part of the primary decision on the appellant’s character. The court held that the AAT’s reasons were sequential and clearly delineated the stages of its decision-making process. The primary decision on the appellant’s character was reached before the Tribunal considered the exercise of discretion. Therefore, the further findings made during the exercise of discretion were not part of the primary decision on the appellant’s character. The court concluded that the shortcomings in the AAT’s reasons on the primary question necessitated a reconsideration of the matter.

The court allowed the appeal, remitted the matter to the AAT for reconsideration in accordance with law, and ordered the Minister to pay the appellant’s costs of the appeal and the application at first instance.

Orders

Orders of the court

1. The appeal is allowed.

2. The matter be remitted to the Administrative Appeals Tribunal for reconsideration according to law.

3. The first respondent pay to the appellant her costs of the appeal and of the application at first instance.

Note:

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

The learned primary Judge acknowledged that, at [22] of its reasons, the Tribunal had made a “slip” in assimilating “enduring moral qualities” to “weaknesses or blemishes in character” whereas in Irving and Goldie the Court had drawn a contrast between those characteristics. Nevertheless, his Honour considered it to be clear from a reading of the Tribunal’s reasons as a whole that “it regarded Mr Selimi’s conduct as serious, grave and extended and concluded that he did not have enduring moral qualities.” In his Honour’s view, despite its use of the expression “weaknesses or blemishes in character” which had been applied in Godley to trivial infractions which could not illuminate the questions of whether a person was not of good character, the Tribunal assessed the totality of the evidence, including what it found to be Mr Selimi’s false testimony at the hearing of the Tribunal, as leading to the conclusion that he is not of good character.CONSIDERATION Counsel for the Minister contended that the reasons for the Tribunal had to be read as a whole, and the adverse findings made in the course of considering the exercise of the discretion were matters which also amounted to findings made by the Tribunal in considering whether s 501(6)(c) was engaged at all. That submission, we consider, should be rejected. The Tribunal’s reasons are sequential. The headings themselves indicate that. It is plain, from the sequence of its decision and the headings used, that the Tribunal first recited the circumstances and evidence, then the relevant legislative provisions, and then turned to consider specifically whether Mr Selimi is a person not of good character. It reached a conclusion on that topic at [20]-[22] of its reasons. It is only at that point that it turned to consider the discretion then available to it. It correctly identified the three primary considerations relevant to the exercise of the discretion specified in Pt 2 of Direction No 21. Its reasons indicate that the further findings then made were not findings which it had taken into account in reaching the decision that Mr Selimi is not a person of good character. It had already reached that conclusion. The reasons why Counsel for the Minister sought to advance the argument which he did is because there are shortcomings in the reasons for decision of the Tribunal on the primary question, namely whether Mr Selimi is a person not of good character. Section 501(6)(c) is set out above at [12]. It is apparent, and accepted by Counsel for the parties, that sub-paragraphs (i) and (ii) of paragraph (c) are each compendious. Sub-section (6) required, in this case, satisfaction that Mr Selimi was not of good character having regard either to his “past and present criminal conduct” or his “past and present general conduct”, or both. Neither alternative sub-paragraph (i) or (ii) could be engaged simply by looking respectively at his past conduct, or at his past criminal conduct.