Nassif v Minister for Immigration - [2005] FMCA 1868

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NASSIF v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1868

MIGRATION – Review of Migration Review Tribunal decision – refusal of a Temporary Business Entry (Class UC) visa – no jurisdictional error – application dismissed.

Migration Legislation Amendment Act (No. 1) 1998 (Cth)
Migration Act 1958 (Cth), s.359A
Judiciary Act 1903 (Cth), s.39B
Migration Regulations 1994 (Cth), Sch 2, sub-cls 457.223(4)(c), 457.223(5)(c)

McKenzie v McKenzie (1970) 3ALL ER 1034
R v Leicester City Justices; Ex parte Barrow & Anor (1991) 3 ALL ER 935
Smith v R (1987) 71 ALR 631
Yo Han Chung v University of Sydney & Ors [2002] FCA 186

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
The King v The Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
Re Commonwealth; Ex parte Marks (2000) 177 ALR 491

Applicant:

YOUSSEFF NASSIF

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File No:

SYG 2781 of 2004

Delivered on:

16 December 2005

Delivered at:

Sydney

Hearing date:

11 November 2005

Judgment of:

Lloyd-Jones FM

REPRESENTATION

The applicant appeared in person with the aid of an Arabic Lebanese interpreter and a McKenzie friend.

Counsel for the Respondent:

Mr D Jordan

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The Migration Review Tribunal is joined as the second respondent.
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2781 of 2004

YOUSSEFF NASSIF

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 8 September 2004 for a judicial review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 11 September 2000, affirming the decision of the delegate of the respondent (“the delegate”) made on 29 May 1997 and reviewed on 20 October 1997 to refuse to grant the applicant a Temporary Business Entry (Class UC) subclass 457 (Business (Long Stay)) visa. The applicant seeks unstated relief against the decision of the Tribunal.

Background

On 11 September 1996 Yousseff Nassif (the applicant), a national of Lebanon born on 13 December 1966 applied for a Temporary Business Entry (Class UC) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-48) (“CB”). On 29 May 1997 the delegate refused to grant the visa (CB pp.49-51). The delegate’s decision was affirmed by a review officer on 20 October 1997 (CB pp.57-61). On 17 November 1997 the applicant lodged an application for a review of the delegate’s decision with the Immigration Review Tribunal (CB p.67). That application became an application for review to the Migration Review Tribunal on 1…

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: [2005] FMCA 1868
Decision Date: 16 December 2005

CaseChat Overview and Summary

The matter before the court involved Nassif, the applicant, and the Minister for Immigration, the first respondent, with the Migration Review Tribunal later joined as the second respondent. The dispute centred on Nassif's challenge to a decision made by the Migration Review Tribunal, which upheld the Minister's decision to cancel his visa. Nassif argued that the decision was flawed and that he was denied procedural fairness. The case was heard by the Federal Court of Australia.

The legal issues before the court encompassed the scope of judicial review in relation to decisions made by the Migration Review Tribunal, particularly focusing on whether the tribunal had correctly applied the law and afforded Nassif procedural fairness. The court was tasked with determining whether there had been any errors in the tribunal's decision-making process that warranted intervention by the court. Additionally, the court needed to assess whether the tribunal's decision was supported by sufficient evidence and whether Nassif's rights to procedural fairness had been respected.

The court examined the tribunal's decision in detail, finding that it had correctly applied the relevant statutory provisions and that the evidence supported the tribunal's findings. The court held that Nassif had not demonstrated any errors in the tribunal's decision-making process that would warrant judicial intervention. Furthermore, the court concluded that Nassif had been afforded procedural fairness, as the tribunal had given him an opportunity to present his case and respond to the evidence against him. Consequently, the court dismissed the application and ordered Nassif to pay the Minister's costs and disbursements.

Orders

Orders of the court

The Migration Review Tribunal is joined as the second respondent.

The application is dismissed.

The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

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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