Sheptitskaya v MIBP

Case [2015] FCCA 159


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

  1. The Application as amended be dismissed.

  2. 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

  1. 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. 

  2. 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…

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Sheptitskaya v MIBP [2015] FCCA 159
Case
[2015] FCCA 159
Decision Date

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

Orders of the court

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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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