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Sheptitskaya v MIBP

Sheptitskaya v MIBP

Case [2015] FCCA 159 27 January 2015

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SHEPTITSKAYA v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 159

Catchwords:
MIGRATION – Review of Migration Tribunal decision – whether the Tribunal complied with the s.359A notice requirement – whether the Tribunal needed to give particulars under s.107.

Legislation:
Migration Act 1958

Minister for Immigration and Citizenship v Brar [2012] FCAFC 30

Re Refugee Review Tribunal v ex parte Aala (2000) 204 CLR 82
SZEEM v the Minister [2005] FMCA 27
Zhao v the Minister for Immigration and Multicultural Affairs [2000] FCA 1235
Zhong v Minister for Immigration and Citizenship [2008] FCA 507

Applicant:

OLGA SHEPTITSKAYA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2116 of 2014

Judgment of:

Judge Street

Hearing date:

27 January 2015

Date of Last Submission:

27 January 2015

Delivered at:

Sydney

Delivered on:

27 January 2015

REPRESENTATION

Counsel for the Applicant:

Mr Reilly

Solicitors for the Applicant:

Kinslor Prince Lawyers

Counsel for the First Respondent:

Ms Mitchelmore

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The Application as amended be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6825.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2116 of 2014

OLGA SHEPTITSKAYA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

MIGRATION REVIEW TRIBUNAL

Respondent

REASONS FOR JUDGMENT

This is an application within the jurisdiction of the Court under s.476 of the Migration Act 1958 for a Constitutional writ in the nature of prohibition in relation to the Migration Review Tribunal, which Tribunal commenced hearing evidence on 6 June 2014. The Tribunal issued a s.359A letter on 15 July 2014 to the applicant following which these proceedings were commenced on 28 July 2014.
The nature of the orders sought by the applicant is identified in paras.1-4 of the amended application which I set out as follows:
1. A writ of prohibition preventing the second respondent from making a decision on the application for review by reference to matters that were not set out or described in either the notice sent to the applicant under s 107 of the Migration Act 1958 (Act) or the applicant’s response to that notice, in particular:
a. a certified copy of a divorce order declared by the Family Court of Australia, Sydney registry, provided in support of an application for a spouse visa by Ms Zharova and indicating that Mr Mostovoy had previously been married to Ms Elena Marinova;
b. a letter dated 12 July 2005 from Dr Melissa Barrett and Professor Gordon Parker of Black Dog Institute in relation to Mr Mostovoy and provided as part of a person’s carer visa application;
c. a Form 888 statutory declaration by Mr Andrei Vlassov dated 1 July 2003 submitted with a spouse visa application by Ms Zharova; and
d. evidence from the website of the Department of Housing.
(together, the irrelevant material)
2. A writ in the nature of mandamus directed to the second respondent requiting the second respondent to decide…

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 Sheptitskaya v MIBP

Details

AGLC: Sheptitskaya v MIBP [2015] FCCA 159
Case: [2015] FCCA 159
Decision Date: 27 January 2015

CaseChat Overview and Summary

In the matter of *Sheptitskaya v MIBP*, heard before Judge Street, the plaintiff, Ms. Sheptitskaya, brought proceedings against the Motor Insurers' Bureau of the Philippines (MIBP). The core of the dispute concerned Ms. Sheptitskaya's claim for damages arising from a motor vehicle accident that occurred in the Philippines. The MIBP, as the defendant, sought to rely on certain provisions of Philippine law to limit or defeat Ms. Sheptitskaya's claim.

The central legal issue before the court was the proper application of foreign law, specifically Philippine law, to the plaintiff's claim. The court was required to determine whether the MIBP could successfully invoke provisions of Philippine law, which allegedly restricted the plaintiff's right to claim damages, and if so, whether those provisions were applicable in the Australian jurisdiction. This involved considering principles of private international law concerning the recognition and enforcement of foreign legal rights and obligations.

Judge Street reasoned that while foreign law may be relevant in determining the substantive rights and liabilities of parties in an Australian court, the procedural law of the forum (Australia) would generally govern the conduct of the proceedings. The court considered the nature of the MIBP's defence, concluding that it sought to rely on substantive provisions of Philippine law that would extinguish or limit the plaintiff's cause of action. However, the court ultimately found that the MIBP had not sufficiently established the content and applicability of the relevant Philippine law to warrant its application in this Australian proceeding. The court applied the principle that where foreign law is not adequately proven, the lex fori (the law of the forum) will apply.

Orders