YAVAS v Minister for Immigration - [2006] FMCA 320

FEDERAL MAGISTRATES COURT OF AUSTRALIA

YAVAS v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 320

MIGRATION – MRT decision – refusal of visa under health criteria – applicant with condition likely to result in significant cost to the Australian community – assessment of whether unlikely to result in “undue” cost – whether Tribunal failed to take into account relevant considerations or considered irrelevant matters – applicant from Turkish Republic of Northern Cyprus with HIV infection – refused interdependent relationship visa – no jurisdictional error found.

Acts Interpretation Act 1901 (Cth), s.8

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.424A(3)(a), 474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
Migration Regulations 1994 (Cth), reg.2.25A(1), Sch.2 cl.826.223, Sch.4 items 4007, 4007(1)(c), 4007(2), 4007(2)(b)

Amarasekera & Anor v Minister for Immigration [2005] FMCA 1500
Bui v Minister for Immigration & Multicultural Affairs (1999) 85 FCR 134
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Puhlhofer v Hillingdon London Borough Council [1986] AC 484

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441

Applicant:

CEMAL YAVAS

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG1739 of 2004

Judgment of:

Smith FM

Hearing date:

2 March 2006

Delivered at:

Sydney

Delivered on:

29 March 2006

REPRESENTATION

Counsel for the Applicant:

Mr J Nolan

Solicitors for the Applicant:

Taylor & Scott

Counsel for the First Respondent:

Mr S Lloyd

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1739 of 2004

CEMAL YAVAS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application filed in the Federal Court on 23 April 2004 which has been transferred to this Court by order of Stone J on 2 June 2004. It seeks orders by way of judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 26 March 2004. The Tribunal affirmed a decision of a delegate which refused to grant a Partner (Temporary) (Class UK) visa to the applicant.
The Court has jurisdiction to grant relief in the proceeding under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which confers the same jurisdiction as the Federal Court under s.39B of the Judiciary Act 1903 (Cth). Section 483A was repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of the present proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8). The powers of both Courts are subject to limitations under Part 8 of…

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: [2006] FMCA 320
Decision Date: 29 March 2006

CaseChat Overview and Summary

The case of Yavas v Minister for Immigration involved the applicant, Yavas, seeking relief in relation to a visa application that had been refused by the delegate and subsequently by the Migration Review Tribunal. The matter was brought before the Court under section 483A of the Migration Act 1958, a provision that conferred jurisdiction similar to that under section 39B of the Judiciary Act 1903. Despite the repeal of section 483A by the Migration Litigation Reform Act 2005, the Court found that the repeal did not affect the continuation of the present proceeding, as per the provisions of the Acts Interpretation Act 1901. The Court acknowledged its limited jurisdiction, noting it could not set aside the Tribunal’s decision unless it was affected by jurisdictional error, and it lacked the authority to decide on the merits of the visa application itself.

The central legal issues the Court had to address were whether the Tribunal’s decision was tainted by jurisdictional error and whether the Court had the authority to grant the relief sought by Yavas. The Court examined the evidence presented regarding Yavas’s relationship with the nominator, which was assumed to be genuine and continuing, as well as the hardships Yavas would face if the visa were refused. The Court was also required to consider the statutory provisions and case law that limit its powers in such proceedings. Ultimately, the Court concluded that the Tribunal’s decision was not affected by any jurisdictional error, and therefore, it did not have the power to interfere with the decision.

Given the Court's findings, the application for relief was dismissed. The Court’s decision was based on its lack of jurisdiction to set aside the Tribunal’s decision and the absence of any jurisdictional error. The Court also reiterated its limited role in such matters, emphasizing that it could not decide on the merits of the visa application. Consequently, the Court dismissed the application, leaving the Tribunal’s decision to stand.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The Court has jurisdiction to grant relief in the proceeding under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which confers the same jurisdiction as the Federal Court under s.39B of the Judiciary Act 1903 (Cth). Section 483A was repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of the present proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8). The powers of both Courts are subject to limitations under Part 8 of the Migration Act, which have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76]‑[77] and subsequent cases). I do not have power myself to decide whether the applicant qualifies for the visa he seeks. The sub‑class of visa sought by the applicant was available to a person who established that he or she had “an interdependent relationship” with a nominator who is an Australian citizen or Australian permanent resident. It is unnecessary for me to examine the regulations defining such a relationship, nor the extensive evidence presented by the present applicant to establish that he had a long standing commitment to his nominator in a homosexual relationship. Both the delegate and the Tribunal assumed that their claimed relationship was genuine and continuing. In short, they claimed to have commenced their relationship in 1979 when both were attending High School in the Turkish Republic of Northern Cyprus (“TRNC”). Separations occurred in the 1980s, during periods of study and conscription. They also had difficulty revealing their situation since “our Turkish culture does not accept and tolerate same sex relationships”, but in 1994 they moved into a flat together and lived “as very good friends” until the nominator left to visit his sister in Australia in the beginning of 1995. This visit was extended. In 1996 the nominator gained Australian permanent residency as a relative of his sister, on the basis that she was in “special need” of emotional support following the breakdown of her marriage. The applicant came to Australia on a visit in 1998, and immediately resumed his relationship and cohabitation with the nominator. In the course of medical assessments required for the visa application, the applicant was diagnosed with HIV infection. On the medical evidence which was ultimately before the Tribunal, he remained asymptomatic, was responding to combination antiretroviral therapy, and “using the best available data the chance of Mr Yavas’ HIV disease progressing in the next 3, 6, or 9 years is 2%, 5% and 13% respectively”. Extensive evidence and submissions were presented to the delegate and the Tribunal which described hardships if the visa were refused. For example, in his final statutory declaration given to the Tribunal, the applicant said:At the moment, my biggest concern is that I may be forced to be separated from my partner. I can’t even begin to imagine life without my partner – where or how I could live without Umit in my life. At present my health is good. I work full–time and live a normal and productive life. Likewise my partner has secure employment. We have a happy and comfortable life together. In Australian culture we can live productive lives free of ostracism. If I were to return to Cyprus I would be confronted with many problems. Firstly, Cyprus has a poor government without international recognition. I have concerns that the health system is not well developed and I am very worried that I will not be able to access the treatment I need for HIV. I also believe that the world sanctions on Cyprus would even prevent me from seeking through my own initiatives. Without treatment I would be unable to live with good health, as I do in Australia. In addition, my family is very traditional and very religious. They would be unable to understand or accept my HIV status or my sexuality as a gay man. I feel there would be a real threat to my safety. As Cyprus is a small community, my partner would very quickly find himself in a similar situation to me regarding his family. Living in Cyprus would also have severe repercussions socially, as the community does not accept homosexuality. There would be further prejudice towards me because of my HIV status. As such I would be unable to work and support myself. I would be unable to function or contribute to the life of the community. If I were to be sent back to Cyprus, the reality is that my health would suffer. My life would be meaningless, as I would be ostracized from my family and the community. I would be penalized physically, socially and emotionally because I am a gay man, living with HIV. There would be severe repercussions not only for me but also my partner and our families. My only wish and plea is to remain in Australia where I could maintain the life I have here, free of prejudice and ostracism so that I can function as a normal person and contribute to my community.