ARA v Minister for Immigration - [2020] FCCA 1948

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARA & ORS v MINISTER FOR IMMIGRATION

[2020] FCCA 1948

Catchwords:
MIGRATION – A600 visitor visa – Waiver of a “No Further Stay” 8503 Condition attached to a visitor visa – Whether the respondent failed to apply the correct test pursuant to sub-s 41(2A) of the Migration Act 1958 (Cth) – Whether the respondent denied procedural fairness to the applicants’ – Whether jurisdictional error was made out – No jurisdictional error is made out – The application is dismissed.

Legislation:

Migration Act 1958 (Cth), s.41(2A)

Migration Regulations1994 (Cth), r.2.05(4)

Cases cited:

Commissioner forAustralian Capital Territory Revenue v Alaphone Pty Ltd

(1994) 127 ALR 699

Kaur and Ors v Minister for Immigration and Anor [2018] FCCA 1614

Mala v Minister for Immigration and Multicultural and Indigenous Affairs

(2005) 189 FLR 341

First Applicant:

ROWSHAN ARA

Second Applicant:

MOHAMMED MINZANUR RAHMAN

Third Applicant:

RAZIA SULTANA

Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES, AND MULTICULTURAL AFFAIRS

File Number:

SYG 2078 of 2019

Judgment of:

Judge Humphreys

Hearing date:

16 July 2020

Date of Last Submission:

16 July 2020

Delivered at:

Parramatta

Delivered on:

16 July 2020

REPRESENTATION

Applicants' appeared in person

Solicitors for the Respondent:

Mr Lonsdale - Clayton Utz

ORDERS

The application is dismissed.
The Applicants’ jointly and severely pay the Respondent’s costs fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 2078 of 2019

ROWSHAN ARA

First Applicant

MOHAMMED MIZANUR RAHMAN

Second Applicant

RAZIA SULTANA

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURA AFFAIRS

Respondent

REASONS FOR EX TEMPORE JUDGMENT

(As revised from transcript)

Introduction

The first applicant is the spouse of the second applicant, Mohammed Mizanur Rahman and the mother of the third applicant, Razia Sultana.
On 27 May 2019, the applicants’ lodged an application to waive a “No Further Stay” 8503 condition (“NFS Condition”) attached to their visitors’ visas’. The first applicant and her dependants’ sought to waive the condition in order to lodge a Medical Treatment visa.
On 6 June 2019, a delegate of the Minister for Immigration (“the delegate”), advised the applicants’ that the application to waive their current NFS Condition, had been refused.
As this decision is not reviewable by the Administrative Appeals Tribunal, the applicants’ have sought judicial review of the delegate’s decision.

The Delegate’s Decision

The delegate noted that the Minister could not waive condition 8503, unless the relevant criteria in the Migration Act1958 (Cth) (“the Act”) and the Migration Regulations1994 (Cth) (“the Regulations”), were satisfied. This included sub-reg 2.05(4) of the Regulations, which is as follows:
2.05(4)
For subsection 41(2A) of the Act the circumstances in which the Minister may waive a condition of a kind described in paragraph 41(2)(a) of the Act are that:
a) since the person was granted the visa that was the subject to the condition compelling and compassionate circumstances have developed:
i.over which the person had no control; and
ii.that resulted in a major change to the person’s…

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: [2020] FCCA 1948
Decision Date: 16 July 2020

CaseChat Overview and Summary

The applicants, ARA and others, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs (the respondent) concerning their applications for a waiver of the "No Further Stay" condition (8503) attached to their visitor visas. The applicants contended that the respondent failed to apply the correct test under s 41(2A) of the *Migration Act 1958* (Cth) and that they were denied procedural fairness, thereby constituting jurisdictional error. The matter was heard by Judge Humphreys in the Federal Circuit and Family Court of Australia.

The central legal issues before the Court were whether the respondent had erred in law by failing to apply the correct test when considering the waiver applications under s 41(2A) of the *Migration Act*, and whether the applicants had been denied procedural fairness in the decision-making process. These questions were framed within the context of whether such errors, if established, amounted to jurisdictional error.

Judge Humphreys found that the respondent had correctly applied the relevant legislative provisions and the established legal principles governing the assessment of waiver applications. The Court determined that the procedural fairness obligations owed to the applicants had been met, and that no jurisdictional error had been made out. Consequently, the application for judicial review was dismissed.

Orders