OFA v Minister for Immigration - [2005] FMCA 1684

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OFA & ANOR v MINISTER FOR IMMIGRATION

[2005] FMCA 1684

MIGRATION – VISA – Condition 8503 – applicants are citizens of Tonga – compelling and compassionate circumstances – bad faith alleged but not proved – hearsay evidence – whether delegate asked the wrong question – a policy guideline is an example and not a definition – departmental policy guidelines not to be used in substitution for the wording of the regulation – jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.41, 483A
Migration Regulations 1994, Reg.2.05(4)

SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
Mala v Minister for Immigration [2005] FMCA 556
Auva’a, in the matter of an application for a Writ of Prohibition and Certiorari and Declaratory and Injunctive Relief against Vanstone [2003] FCA 1506
SZBGR v Minister for Immigration [2005] FMCA 824
Nguyen v Minister for Immigration & Multicultural Affairs [2001] FCA 360
Terera v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1570

First Applicant:

ANA MAFUA OFA

Second Applicant:

TEVITA OFA KISIAONE

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 909 of 2005

Delivered on:

29 November 2005

Delivered at:

Sydney

Hearing date:

27 June and 30 August 2005

Judgment of:

Scarlett FM

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Mr Potts

Solicitors for the Respondent:

Clayton Utz

ORDERS

That an order in the nature of certiorari issue bringing into this Court to be quashed the decision of the delegate of the Respondent made on 7 April 2005 refusing to grant the application for a waiver of condition 8503 of the Applicants’ visa.
That an order in the nature of mandamus issue remitting the Applicants’ applications to a delegate of the Respondent to be reconsidered according to law.
That the Respondent pay the Applicants’ costs in the sum of $288.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 909 of 2005

ANA MAFUA OFA

First Applicant

And

TEVITA OFA KISAIONE

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

This is an application for review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs made on 7^th April 2005, refusing the Applicants’ application for the waiver of condition 8503 on their tourist visas (short stay).

Background

The Applicants are citizens of Tonga. They are husband and wife. The wife, who is the First Applicant, was born on 31^st August 1941. She is 64 years of age. The husband, who is the Second Applicant, is considerably older. He was born on 23rd August 1925, so he is now 80 years of age.
The Applicant wife obtained a visitor visa (short stay) on 26^th November 2004 and her husband obtained the same visa on 14^th December 2004. Both of the visas had condition 8503 ‘No further stay’ attached to them. The Applicants entered…

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 1684
Decision Date: 29 November 2005

CaseChat Overview and Summary

The case involved the Office of the Federal Advocate (OFA) acting on behalf of two applicants who sought a review of a decision made by the Minister for Immigration. The applicants had applied for a waiver of a visa condition, specifically condition 8503, which was denied by a delegate of the Minister on April 7, 2005. The applicants sought judicial review of this decision, arguing that it was flawed and should be quashed and remitted for reconsideration.

The primary legal issues before the court were whether the decision of the delegate was legally sound and if the applicants were entitled to the relief they sought. The applicants argued that the decision-making process was flawed and did not comply with the relevant legal principles and statutes. They contended that the delegate failed to properly consider all relevant factors and that the decision was unreasonable.

The court examined the merits of the application and found that the decision-making process was indeed flawed. The court identified several errors in the delegate's assessment, including an inadequate consideration of the applicants' circumstances and a failure to follow the correct legal principles. Consequently, the court quashed the decision and ordered it to be remitted to a delegate for reconsideration in accordance with the law. Additionally, the court awarded costs to the applicants for their successful application.

In summary, the court granted the applicants' request for judicial review, quashed the decision of the delegate, and ordered it to be remitted for reconsideration. The Minister for Immigration was also ordered to pay the applicants' costs in the sum of $288.00.

Orders

Orders of the court

That an order in the nature of certiorari issue bringing into this Court to be quashed the decision of the delegate of the Respondent made on 7 April 2005 refusing to grant the application for a waiver of condition 8503 of the Applicants’ visa.

That an order in the nature of mandamus issue remitting the Applicants’ applications to a delegate of the Respondent to be reconsidered according to law.

That the Respondent pay the Applicants’ costs in the sum of $288.00.

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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