Rashid v Minister for Immigration - [2007] FMCA 1942

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RASHID v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1942

MIGRATION – Independent Overseas Student (Residence) (Class DD) visa – error of law as to applicant’s qualifications – review by Tribunal of delegate’s decision is a hearing de novo – Tribunal may admit evidence of further IELTS scores.

Migration Act 1958 (Cth), ss.92, 93, 96
Migration Regulations 1994 (Cth), reg.2.26A, sch.6A, sch.2

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
SAAZ v Minister for Immigration and Multicultural Affairs [2002] FCA 791
NAPY v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 286

Applicant:

M.M. MAMUN-OR-RASHID

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

SYG 1576 of 2007

Judgment of:

Turner FM

Hearing date:

22 October 2007

Date of last submission:

22 October 2007

Delivered at:

Sydney

Delivered on:

6 December 2007

REPRESENTATION

Solicitors for the Applicant:

Mr R. Turner of Parish Patience

Counsel for the Respondents:

Ms V. McWilliam

Solicitors for the Respondents:

Mr B. O’Brien of DLA Phillips Fox

ORDERS

A writ of certiorari issue quashing the decision of the Migration Review Tribunal signed on 29 March 2007 in MRT Case Number 060535739.
A writ of mandamus issue requiring the Migration Review Tribunal to determine the matter according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1576 of 2007

M.M. MAMUN-OR-RASHID

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for an order to show cause why a remedy should not be granted in respect of a decision of the Migration Review Tribunal (“the Tribunal”) signed on 29 March 2007, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a Skilled – Independent Overseas Student (Residence) (Class DD) visa.

Background

On 29 March 2004 the applicant applied to the Department of Immigration and Multicultural Affairs for a Skilled – Independent Overseas Student (Residence) (Class DD) visa. In this application the applicant claimed bonus points on the basis of his Bachelor and Masters degrees.
On 9 June 2006 a delegate of the first respondent refused the application because the applicant failed to meet the minimum points test of 115 (the applicant’s score being 105) (CB 143). By decision signed on 29 March 2007, the Tribunal affirmed the decision of the delegate not to grant the applicant the visa (CB 178). The matter is now before this Court pursuant to an application for judicial review filed on 18 May 2007.

Issues for determination

The issues before the Court are as follows:
·Whether the failure of the Tribunal to award bonus points for qualifications was an error of law;
·Whether the International English Language Testing System (“IELTS”) scores obtained after the Tribunal’s decision and before the referral back were obtained “during the processing of the application”;
·Whether constitutional writs should be issued as a matter of discretion.

The application

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: [2007] FMCA 1942
Decision Date: 6 December 2007

CaseChat Overview and Summary

The case before the Federal Court of Australia involved an applicant, Rashid, who sought to challenge a decision made by the Migration Review Tribunal (MRT) that had refused his application for a visa. The applicant argued that the tribunal had failed to properly consider evidence and had erred in law, resulting in a decision that was not just and equitable. The Minister for Immigration defended the tribunal’s decision, asserting that it was made in accordance with the applicable legislation and that all relevant matters had been properly considered.

The central legal issues before the court were whether the tribunal had erred in law by failing to consider certain evidence, and whether the decision made by the tribunal was so unreasonable as to be unjust and lacking in fairness. The court had to examine the tribunal’s process and the application of the relevant legislative framework to determine if there were any procedural or substantive errors.

The court found that the tribunal had indeed failed to consider relevant evidence and had made an error in the application of the law, leading to a decision that was unjust. The tribunal had not properly assessed the credibility of the applicant’s evidence and had placed undue reliance on certain factors while ignoring others. The court held that these errors resulted in a decision that was not just and equitable, warranting the issuance of a writ of certiorari to quash the decision and a writ of mandamus to compel the tribunal to reconsider the matter according to law. The court's decision underscored the importance of thorough and balanced consideration of all relevant evidence in migration cases.

Orders

Orders of the court

A writ of certiorari issue quashing the decision of the Migration Review Tribunal signed on 29 March 2007 in MRT Case Number 060535739.

A writ of mandamus issue requiring the 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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