MIGRATION – Review of Migration Review Tribunal decision – refusal of visa on public health grounds by reference to an opinion of a Review Medical Officer of the Commonwealth – whether the MRT erred in considering itself bound by the opinion considered – MRT not bound by a purported opinion which fails to address the legislative criteria – need for MRT to consider and determine validity of a purported opinion.
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
MIGRATION REVIEW TRIBUNAL
File Number:
SYG2399 of 2003
Judgment of:
Driver FM
Hearing date:
23 November 2005
Delivered at:
Sydney
Delivered on:
14 December 2005
REPRESENTATION
Counsel for the Applicant:
Mr L Karp
Counsel for the Respondent:
Mr T Reilly
Solicitors for the Respondent:
Sparke Helmore
ORDERS
The Migration Review Tribunal is joined as the second respondent to the proceedings.
A writ of certiorari shall issue, quashing the decision of the Migration Review Tribunal made on 21 May 2003.
A writ of mandamus shall issue, remitting the matter to the Migration Review Tribunal for redetermination according to law.
The first respondent shall pay the applicant’s costs and disbursements of an incidental to the application, fixed in the sum of $5,000.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY
SYG2399 of 2003
RAMLU
Applicant
And
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
First Respondent
MIGRATION REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Migration Review Tribunal (“the MRT”) dated 21 May 2003. The MRT affirmed a decision of a delegate of the Minister refusing visa applications by the applicant and his wife and children, on the basis of health criteria. The applicant, who has only one name, is a citizen of Fiji. In June 1999 he applied for a sub-class 805 skilled visa to migrate to Australia[1]. The delegate’s decision refusing the visa was made on 14 July 2000[2]. The applicant applied to the MRT for review on 2 August 2000[3]. On 31 March 2003 the MRT wrote to the applicant, pursuant to s.359A of the Migration Act 1958 (Cth) (“the Migration Act”) and invited him to a hearing on 6 May 2003[4]. The applicant declined to attend a hearing[5]. The MRT proceeded to determine the matter, pursuant to s.363B of the Migration Act.
[1] court book, pages 1-24
[2] court book, pages 133-145
[3] court book, pages 146-152
[4] court book, pages 262-263
[5] court book, page 268
The MRT found that it was bound to follow the opinion of a Review Medical Officer of the Commonwealth (RMOC)[6]. 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.
Continue reading Ramlu v MIMIA
Sign in free to access the full text
Details
AGLC
Ramlu v MIMIA [2005] FMCA 1735
Case
[2005] FMCA 1735
Decision Date
CaseChat Overview and Summary
The case of Ramlu v MIMIA involved the applicant challenging a decision made by the Migration Review Tribunal (MRT) on 21 May 2003. The applicant, Mr. Ramlu, sought judicial review of the MRT’s decision, contending that it was unlawful and unjust. The Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) was the first respondent, while the MRT was joined as the second respondent. The Federal Court was tasked with reviewing the legality of the MRT’s decision.
The primary legal issues before the court revolved around whether the MRT had acted outside its jurisdiction, whether the decision was based on an error of law, and whether the applicant's rights to procedural fairness were breached. The applicant argued that the MRT had failed to consider relevant information and had applied the wrong legal principles in reaching its conclusion. Additionally, it was claimed that the decision was not supported by the evidence provided.
In delivering its judgment, the court found that the MRT had indeed erred in its application of the law and had failed to consider all relevant information. The court determined that the decision was therefore invalid. The court quashed the MRT’s decision and issued a writ of mandamus to remit the matter back to the MRT for reconsideration. Furthermore, the court ordered that the MIMIA pay the applicant’s costs and disbursements, fixed at $5,000.
Orders
Orders of the court
1.
The Migration Review Tribunal is joined as the second respondent to the proceedings.
2.
A writ of certiorari shall issue, quashing the decision of the Migration Review Tribunal made on 21 May 2003.
3.
A writ of mandamus shall issue, remitting the matter to the Migration Review Tribunal for redetermination according to law.
4.
The first respondent shall pay the applicant’s costs and disbursements of an incidental to the application, fixed in the sum of $5,000.