FEDERAL CIRCUIT COURT OF AUSTRALIA
| OZ v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1810 |
| Catchwords: MIGRATION – Application for Other Family (Residence) (Class BU) visa – review of decision of Migration Review Tribunal – whether the Tribunal failed to properly consider evidence before it – whether the Tribunal failed to apply the law. |
| Legislation: Migration Act 1958 (Cth), ss.5CA, 5(1), 476. Migration Regulations1994 (Cth) cl.836.213 of Sch.2, cl.103.211 of Sch. 2, Regs. 1.03. 1.04A, 1.14A |
| Cases cited: Knightley & Brandon [2013] FMCAfam 148 Plaintiff M47/2012 v Director General of Security ( 2012) 251 CLR 1 |
| Applicant: | FATMA OZ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 2672 of 2014 |
| Judgment of: | Judge McNab |
| Hearing date: | 20 June 2016 |
| Date of Last Submission: | 20 June 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 19 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Goodwin |
| Solicitors for the Applicant: | Lawson Bayly |
| Counsel for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The Second Respondent’s name be amended to ‘Administrative Appeals Tribunal’.
The applicant’s application filed 31 December 2014 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,753.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2672 of 2014
| FATMA OZ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application dated 31 December 2014, the applicant seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 28 November 2014. The Tribunal had affirmed the decision of a delegate of the Minister not to grant the applicant an Other Family (Residence)(Class BU) visa (“the visa) under s.65 of the Migration Act 1958 (Cth) (“the Act”).
As the proceedings were brought pursuant to s.476 of the Act, the applicant must show jurisdictional error in the Tribunal’s decision.
The applicant requires the court to determine whether the applicant is sponsored by an Australian relative. In particular the court must consider whether there is an error in the manner in which the Tribunal considered whether the sponsor, being found to be the former spouse of the applicant’s father, is a “step-parent” for the purposes of the Migration Regulations 1994 (“the Regulations”).
Background
The applicant is a Turkish citizen who first arrived in Australia on 20 April 2009. She has since remained in Australia except for a brief period in 2009-2010. On 2 April 2013, she made an application for an Other Family (Residence)(Class BU) visa, specifically a Carer (Residence)(BU 836) visa.
Decision of the Delegate
To obtain the visa, the applicant had to meet the relevant legal requirements specified in the Act and the Regulations.[1] On 8 August 2013, the Minister’s delegate refused to grant the visa as the applicant was not sponsored in accordance with cl.836.213 of Sch.2 of the Regulations. That regulation provided:
[1] Court Book, p. 181
The applicant is sponsored:
(a) by the…
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- Case
- [2016] FCCA 1810
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the delegate, and subsequently the Minister, had properly considered and assessed the evidence presented by OZ regarding their claims of persecution. Specifically, the court was required to determine if the delegate's adverse credibility findings were reasonably open on the evidence, and if the Minister's decision to affirm that refusal was affected by jurisdictional error.
Judge McNab found that the delegate's assessment of OZ's claims contained significant errors. The delegate failed to adequately consider crucial aspects of OZ's evidence, particularly concerning the alleged persecution by state actors. This failure meant that the delegate did not engage with the substance of OZ's fear in a manner required by the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). Consequently, the Minister's decision, which affirmed the delegate's flawed assessment, was vitiated by jurisdictional error. The court ordered that the Minister's decision be set aside and remitted to the Minister for redetermination according to law.
Orders
Orders of the court
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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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