Nakad v MIAC - [2013] FMCA 234

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAKAD & ORS v MINISTER FOR IMMIGRATION & ANOR

[2013] FMCA 234

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether applicants satisfy the definition of “child” for the purposes of satisfying the requirements of subclause 802.212 – no error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 474, Pt.8
Migration Regulations 1994 (Cth), schedule 2, regs.1.03, 1.05A
Family Law Act1975 (Cth), s.4, Part VII

First Applicant:

JULIAN ANTOINE NAKAD

Second Applicant:

MARIA NAKAD

Third Applicant:

JOSEPH ANTOINE NAKAD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1571 of 2012

Judgment of:

Emmett FM

Hearing date:

4 March 2013

Date of Last Submission:

4 March 2013

Delivered at:

Sydney

Delivered on:

4 April 2013

REPRESENTATION

The applicants appeared in person with the assistance of an interpreter

Solicitors for the Respondents:

L. Buchanan (Australian Government Solicitors)

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1571 of 2012

JULIAN ANTOINE NAKAD

First Applicant

MARIA NAKAD

Second Applicant

JOSEPH ANTOINE NAKAD

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 13 June 2012 and handed down on the same day (“the Tribunal”).
The applicants are all minors and are citizens of the United States of America. Neither the applicants nor their parents are Australian citizens.
On 23 August 2012, an Order was made by this Court appointing the applicants’ mother, as the litigation guardian to the first named applicant, born 5 February 2002, the second named applicant, born 31 January 1998, and the third named applicant, born 12 July 2000
The issue in this case is whether the applicants satisfied the definition of “child” for the purposes of satisfying the requirements of subclause 802.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). This issue is considered below in the context of considering whether the Tribunal’s decision is affected by jurisdictional error.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework and a summary of the Tribunal’s review and decision.

Background

The applicants applied to the Department of Immigration and Citizenship for Child (Residence) (Class BT) visas on 7 March 2012. They were sponsored by their uncle, an Australian citizen, with whom they and their parents live.
On 16 March 2012, the Delegate refused the applicants’ applications for a Child (Residence) (Class BT) visas.
On 11 April 2012, the applicants lodged an application for review of the Delegate’s decision by the Migration Review Tribunal.
On 13 June 2012, the…

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 Nakad v MIAC

Details

AGLC: Nakad v MIAC [2013] FMCA 234
Case: [2013] FMCA 234
Decision Date: 4 April 2013

CaseChat Overview and Summary

The applicants, Nakad and his family, sought judicial review of a decision made by the Refugee Review Tribunal (RRT) to dismiss their application for a protection visa. The case was heard in the Federal Court of Australia. The applicants argued that the RRT had erred in its interpretation of the definition of a "child" under the Migration Act, which they claimed was critical to their eligibility for protection under subclause 802.212. The court was tasked with determining whether the RRT's decision was affected by any jurisdictional error and if the applicants correctly satisfied the definition of "child".

The primary legal issue was whether the RRT had made a jurisdictional error in its interpretation of the term "child" as it applied to the applicants. The applicants contended that they met the definition of "child" as outlined in the Act, which includes those under the age of 18 who are dependent on their parents. They argued that this interpretation should have led to a favourable outcome under subclause 802.212, which provides protection for children in refugee situations. The court had to assess the RRT's reasoning and whether it appropriately applied the relevant legal principles.

The court found that the RRT had not erred in its interpretation of the term "child" and that the applicants did not meet the definition required under the Migration Act. The court held that the RRT's decision was well-reasoned and supported by the evidence. The applicants' arguments regarding the definition of "child" were rejected as the court found that the RRT had correctly applied the relevant legal criteria. Consequently, the application for judicial review was dismissed as the court found no merit in the applicants' claims of error.

As a result of the court's findings, the application for judicial review was dismissed. The decision of the RRT was upheld, and the applicants' claim for a protection visa was denied. The court confirmed that the RRT's determination was lawful and that there was no basis to interfere with its decision.

Orders