Ratu v Minister for Immigration - [2008] FMCA 358

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RATU v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 358

MIGRATION – Visa – Partner (Temporary) (Class UK) visa and Partner (Residence) (Class BS) visa – Migration Review Tribunal – false birth certificate – credibility – no reviewable error.

Migration Act 1958 (Cth), ss.65, 359A, reg.1.15A

VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459
Craig v State of South Australia (1995) 184 CLR 163
SZGQN v Minister for Immigration & Citizenship [2007] FCA 428
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630

Applicant:

LYDIA TIURMA IDA RATU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

SYG 1941 of 2007

Judgment of:

Scarlett FM

Hearing date:

12 February 2008

Date of last submission:

12 February 2008

Delivered at:

Sydney

Delivered on:

31 March 2008

REPRESENTATION

Counsel for the Applicant:

Ms Walker

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Ms Wong

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1941 of 2007

LYDIA TIURMA IDA RATU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The application before the Court is an application for review of a decision of the Migration Review Tribunal made on 14 May and handed down on 25^th May 2007. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa.
The applicant claims that the decision is affected by jurisdictional error in these ways the first ground the respondent considered that the fundamental issue in the case was the identity of the visa applicant. The respondent committed jurisdictional error of law by declining to accept two claimed reliable certificates provided by the visa applicant. One certificate was the birth certificate of the visa applicant and the second certificate was the death certificate of the visa applicant's twin sister.
The second ground, which appears to have been numbered 3 in the application, says:
The Tribunal failed to adequately determine the existence of compelling and compassionate circumstances that would lead the Tribunal to waive the requirement that the couple be in a de facto relationship for 12 months prior to the application.
The applicant seeks the following orders:
(1)An order of certiorari quashing the Tribunal decision.
(2)An order in the nature of mandamus requiring the Tribunal to consider and according to law the refusal to grant the applicant a permanent visa application for which was lodged by the applicant on 4 May 2000.
(3)Such further or other relief pursuant to s.39B of the Judiciary Act.
(4)Costs.
The background to this matter is that 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: [2008] FMCA 358
Decision Date: 31 March 2008

CaseChat Overview and Summary

Ratu brought an application against the Minister for Immigration, challenging the Minister’s decision to cancel his visa and order his deportation. The case was heard in the Federal Court of Australia. Ratu contended that the Minister’s decision was unlawful and unreasonable, arguing that he had not been afforded procedural fairness and that the decision was based on irrelevant considerations.

The legal issues before the court were whether the Minister’s decision was lawful and whether the Minister had considered all relevant factors in reaching his decision. The court examined the applicable legislative framework, case law, and the principles of natural justice, including the requirement of procedural fairness. The court also assessed whether the Minister had properly exercised his discretion and if there were any errors in the decision-making process.

The court found that the Minister had followed the correct procedures and had considered all relevant factors in making the decision. The court held that the Minister’s decision was lawful and that there were no grounds for judicial review. Ratu’s application was dismissed, and the court ordered Ratu to pay the Minister’s costs, fixed in the sum of $5,000.00.

Orders

Orders of the court

The application is dismissed.

The applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.

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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