OZ v Minister for Immigration - [2016] FCCA 1810

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
Family Law Act 1975, s.4, 61DA.

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…

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: [2016] FCCA 1810
Decision Date: 19 August 2016

CaseChat Overview and Summary

The applicant, OZ, sought judicial review of a decision made by the Minister for Immigration, which affirmed a delegate's decision to refuse OZ's application for a protection visa. The dispute centred on whether OZ held a genuine fear of persecution should they be returned to their country of origin.

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