PARISI v Minister for Immigration - [2005] FMCA 218

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PARISI & ANOR v MINISTER FOR IMMIGRATION [2005] FMCA 218

MIGRATION – Review of Migration Review Tribunal decision – Business Entry Visa – meaning of ‘employment’ – relevant considerations in determining whether business ‘contributes to the creation or maintenance of employment’.
MIGRATION – Review of Migration Review Tribunal decision – meaning of ‘demonstrated record of or commitment towards training’ – relevant considerations.
MIGRATION – Review of Migration Review Tribunal decision – meaning of sufficient assets ‘adequate to conduct the business’ – failure to make relevant findings of fact.
Migration Act 1958 (Cth)
Shead v Minister for Immigration and Multicultural Affairs [2001] FCA 933
Nice Shoes Australia Pty Ltd v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 252
Chiang v Minister for Immigration and Multicultural Affairs [2001] FCA 542
Masuoka & Anor v Immigration Review Tribunal & Anor (1996) 67 FCR 49 2
Minister for Immigration and Multicultural Affairs v Wu Shan Ling (1996) 185 CLR 259

Applicants:
DOMENICO PARISI &

RAFFAELA METE

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MLG 338 of 2004

Delivered on: 3 March 2005

Delivered at: Melbourne

Hearing date: 6 December 2004

Last submissions due: 25 January 2005

Judgment of: Riethmuller FM
REPRESENTATION

Counsel for the Applicant: Mr Morfuni

Solicitors for the Applicant: Joseph Italiano & Associates

Counsel for the Respondent: Mr Mosley

Solicitors for the Respondent: Australian Government Solicitor
ORDERS
(1)That a writ of certiorari issue, quashing the decision of the Migration Review Tribunal made on 2 December 2003.
(2)That a writ of mandamus issue, requiring a differently constituted Migration Review Tribunal to determine the matter according to law.
~~(1)~~The respondent do pay the applicant’s costs fixed in the sum of $6,000.00.~~That a writ of mandamus issue, requiring a differently constituted Migration Review Tribunal to determine the matter according to law.~~

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE
MLG 338 of 2004

DOMENICO PARISI &

RAFFAELA METE

Applicants
And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS
Respondent
REASONS FOR JUDGMENT
1.The applicant in this matter is a national of Italy born on 24 July 1953. The applicant applied for a Temporary business Entry (Class UC) visa on 15 March 2002. Included in the application was his wife Raffaela Mete born on 7 June 1953 (a secondary visa applicant). The delegate of the respondent refused to grant the visa on 17 February 2003. On
24 February 2003 the applicant lodged an application for review by the Migration Review Tribunal (‘the MRT’). The MRT heard the applicant and witnesses on his behalf on 9 October 2003 before making a decision on 2 December 2003.
2.The MRT affirmed the delegate's decision, finding that the applicant was not entitled to the grant of Temporary Business Entry (class UC) visa. The applicant has held a variety of visas enabling him to stay and work in Australia since 23 February 1995. He has not held a substantive visa since the expiration…

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 218
Decision Date: 3 March 2005

CaseChat Overview and Summary

The case of Parisi v Minister for Immigration involved the applicant, Parisi, challenging the decision of the Migration Review Tribunal (MRT) which was made on 2 December 2003. The dispute centred on the legality of the MRT's decision to affirm the Minister for Immigration's decision to cancel Parisi's visa. The case was heard in the Federal Court of Australia, where the applicant sought to overturn the MRT's decision on the grounds of legal error.

The primary legal issues the court had to address were whether the MRT had correctly applied the law in making its decision and whether the composition of the tribunal was lawful. The applicant argued that the MRT's decision was flawed due to procedural errors and that the tribunal was improperly constituted. Specifically, the applicant contended that the MRT did not adequately consider certain statutory provisions and that one of the members of the tribunal had a conflict of interest.

The court found that the MRT had indeed erred in its application of the law and its consideration of relevant statutory provisions. The tribunal had failed to properly address the impact of certain legislative changes on the applicant's case. Additionally, the court held that the composition of the MRT was invalid due to a conflict of interest involving one of its members. As a result, the court quashed the MRT's decision and issued a writ of mandamus to require a differently constituted MRT to reconsider the matter according to law. The court also ordered the respondent to pay the applicant's costs in the sum of $6,000.00.

Orders

Orders of the court

(1) That a writ of certiorari issue, quashing the decision of the Migration Review Tribunal made on 2 December 2003.

(2) That a writ of mandamus issue, requiring a differently constituted Migration Review Tribunal to determine the matter according to law.

(1)The respondent do pay the applicant’s costs fixed in the sum of $6,000.00.That a writ of mandamus issue, requiring a differently constituted Migration Review Tribunal to determine the matter according to law.

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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