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[2017] FCA 457
Federal Court of Australia
2017-05-02
Tracey J
Original judgment source is linked above.
THE APPLICANT'S SUBMISSIONS 19 Mr Denizgezen appeared in person at the hearing of his application. He has, for some time, been in and remains in immigration detention. 20 Mr Denizgezen advised the Court that he had not drafted the grounds appearing in his application and was unable to assist the Court to understand how they arose in the course of the Tribunal dealing with and determining his application. Mr Denizgezen did mention that he has children in Australia. This factor was one which the Tribunal considered weighed in favour of his visa being granted.
CONSIDERATION 21 Ground 1 does not allege any error on the part of the Tribunal. 22 I have read the Tribunal's reasons carefully and I cannot identify any error of the kind alleged in Ground 2. 23 There was no evidence before the Court of any procedural irregularity which would support the allegations that Mr Denizgezen was denied natural justice (as alleged by Ground 3) or that the Tribunal had failed to comply with its obligations under s 424A(1) of the Act (as alleged by Ground 4). 24 On reading the Tribunal's reasons, I was concerned that it may not have followed the two step process mandated by s 501: see Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67 at 69; [2009] FCA 1098 at [16] (Edmonds J); Brown v Minister for Immigration and Citizenship (2010) 265 ALR 668 at 674; [2010] FCAFC 33 at [29] (Nicholas J, Moore and Rares JJ agreeing); Aksu v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 667 at 674; [2001] FCA 514 at [24] (Dowsett J), quoted with approval in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 at 523; [2004] FCAFC 256 at [72] (Kiefel and Bennett JJ). On reflection, I do not consider that the Tribunal failed to determine whether Mr Denizgezen had failed to meet the character test before determining whether the visa should be refused. The Tribunal's finding that there was a low to moderate risk that Mr Denizgezen would re-offend, although made in the context of discretionary considerations, was, nonetheless, a finding that he had failed to satisfy the character test. The Tribunal's treatment of the discretionary considerations disclosed no reviewable error.
DISPOSITION 25 The application must be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.
Denizgezen
Minister for Immigration and Border Protection
TRACEY J: 1 This is an application to review a decision of the Administrative Appeals Tribunal ("the Tribunal") to affirm a decision of a delegate of the Minister: see Denizgezen v Minister for Immigration and Border Protection [2016] AATA 727. That decision was to refuse an application by the applicant, Mr Denizgezen, for a partner (temporary) (class UK) visa pursuant to s 501(1) of the Migration Act 1958 (Cth) ("the Act"). The visa was refused because the Minister's delegate considered that Mr Denizgezen did not pass the character test as particularised in s 501(6)(d)(i) of the Act. 2 The proceeding was commenced in the Federal Circuit Court and later transferred to this Court pursuant to s 39(1) of the Federal Circuit Court of Australia Act 1999 (Cth).
(2010) 265 ALR 668
(2004) 139 FCR 505