Anupama v Minister for Immigration - [2009] FMCA 817

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ANUPAMA v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 817

MIGRATION – Review of Migration Review Tribunal decision – refusal of a student visa – application of exclusion period – previous visa cancelled within three years – applicant claimed to have relied on Departmental advice that she could cease studying, which led to the cancellation of her previous student visa – whether that reliance established a “compassionate or compelling circumstance” considered – Tribunal found that it was the applicant’s responsibility to comply with the conditions on her visa – whether the Tribunal asked itself the wrong question considered.

WORDS AND PHRASES – “compelling circumstance”.

Migration Act 1958 (Cth), ss.116, 353, 357A, 420, 422B, 424A
Migration Amendment (Review Provisions) Act 2007 (Cth)
Migration Regulations 1994 (Cth)

Babicci v Minister for Immigration [2005] FCAFC 77
Jones v Department of Employment (1989) 1 QB 1
L Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1980-81) 150 CLR 225
Minister for Immigration v Eshetu (1999) 197 CLR 611
Minister for Immigration v SZMOK [2009] FCAFC 83
Minister for Immigration v Yusuf [2001] 206 CLR 323
Nguyen v Minister for Immigration (2001) 109 FCR 169
Pickering v Centrelink [2008] FCA 561
SZBYR v Minister for Immigration (2007) 235 ALR 609
SZGBR v Minister for Immigration [2005] FMCA 824

SZLLY v Minister for Immigration (2009) 107 ALD 352

Applicant:

ANUPAMA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2109 of 2008

Judgment of:

Driver FM

Hearing date:

25 August 2009

Delivered at:

Sydney

Delivered on:

10 September 2009

REPRESENTATION

Counsel for the Applicant:

Mr D Tynan

Solicitors for the Applicant:

Rasan T Selliah & Associates

Counsel for the Respondents:

Mr J A C Potts

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

A writ of certiorari shall issue quashing the decision of the Migration Review Tribunal made on 8 July 2008.
A writ of mandamus shall issue, requiring the Migration Review Tribunal to redetermine the application before it according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2109 of 2008

ANUPAMA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”). The decision was made on 8 July 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant Ms Anupama a Student (Temporary) (Class TU) Visa. The Tribunal found it had no jurisdiction in relation to a second named applicant who is not a party to these proceedings.
The following statement of background facts is derived from the applicant’s written submissions filed on 13 November 2008 and the Minister’s written submissions filed the following day.
The applicant is a 27 year old citizen of India.[1] She arrived in Australia on 24 September 2006.[2] She was granted a Class TU Student (Sub-Class 573) Visa on 25 October 2006, permitting multiple…

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: [2009] FMCA 817
Decision Date: 10 September 2009

CaseChat Overview and Summary

The case of Anupama v Minister for Immigration involved the applicant, a student whose visa was refused by the Minister for Immigration. The applicant sought judicial review of a decision by the Migration Review Tribunal, which had upheld the refusal. The matter was heard in the Federal Court of Australia. The central dispute was whether the Tribunal had correctly applied the law in determining that the applicant's previous visa cancellation within three years of her current application warranted an exclusion period, and whether her reliance on Departmental advice constituted a "compelling circumstance" that should mitigate this outcome.

The primary legal issues before the court were the correct interpretation and application of the relevant provisions of the Migration Act 1958 (Cth). Specifically, the court had to consider whether the Tribunal had erred in law by not adequately considering the applicant's reliance on Departmental advice as a "compelling circumstance." It was also necessary to determine whether the Tribunal had asked itself the right question when assessing the applicant's circumstances.

The court found that the Tribunal had indeed erred in its legal approach. It held that the Tribunal had not sufficiently considered the applicant's reliance on Departmental advice and whether this constituted a "compelling circumstance." The court held that the Tribunal should have asked itself whether the applicant had acted reasonably in relying on the advice, rather than simply determining whether she had a responsibility to comply with visa conditions. Consequently, the court quashed the Tribunal's decision and ordered that the Tribunal redetermine the application according to law.

The court made two key orders. Firstly, a writ of certiorari was issued to quash the decision of the Migration Review Tribunal made on 8 July 2008. Secondly, a writ of mandamus was issued, directing the Migration Review Tribunal to redetermine the application before it in accordance with the law.

Orders

Orders of the court

A writ of certiorari shall issue quashing the decision of the Migration Review Tribunal made on 8 July 2008.

A writ of mandamus shall issue, requiring the Migration Review Tribunal to redetermine the application before it according to law.

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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