Babar v Minister for Immigration - [2016] FCCA 1521

FEDERAL CIRCUIT COURT OF AUSTRALIA

BABAR & ORS v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1521

Catchwords:
MIGRATION – Judicial review – decision of former Migration Review Tribunal – Temporary Business (Class UC) visa Subclass 457 – whether jurisdictional error.

LAWYERS – Conduct of applicant’s lawyer – failure to appear – subsequent failure to appear – whether on register of practitioners – failure to comply with Court orders – whether referral to New South Wales Legal Services Commission appropriate.

MIGRATION – Restrictions on person not a registered migration agent giving immigration assistance – whether referral to regulatory authority appropriate.

COURTS AND JURISDICTION – Whether Court has associated and ancillary jurisdiction to deal with alleged misleading and deceptive conduct, breach of contract and negligence by a person not acting as a migration agent.

Legislation:

Australian Consumer Law, s.18

Competition and Consumer Act 2010 (Cth), Sch.2, s.18

Criminal Code Act 1995 (Cth)

Federal Circuit Court of Australia Act 1999 (Cth), ss.10, 14, 18, 53

Federal Circuit Court Rules 2001 (Cth), r.6.01

Judiciary Act 1903 (Cth), s.55B(3), 55C

Migration Act 1958 (Cth), Part 5, ss.65, 140GB, 280, 337, 338(2)(d), 476

Migration Regulations 1994 (Cth), reg.4.02, Sch.2, cl.457.233

Cases cited:

Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182

Christie v Harvey & Hayward (1900) 2 WALR 146
Doyle v Gillespie [2010] ACTSC 21; (2010) 173 ACTR 66; (2010) 4 ACTLR 188

Kandel v Minister for Immigration & Border Protection & Anor [2015] FCCA 2013; (2015) 300 FLR 189

Kang v Australian Broadcasting Corporation [2015] NSWSC 893
Kang v Australian Broadcasting Corporation [2015] NSWCA 375
Kang v Immigration News Pty Ltd [2016] NSWDC 74

Minister for Immigration & Border Protection v Lee & Ors [2014] FCCA 2881

First Applicant:

ZAHEER-UD-DIN BABAR

Second Applicant:

SYEDA SOBIA SHAH

Third Applicant:

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: [2016] FCCA 1521
Decision Date: 23 June 2016

CaseChat Overview and Summary

The Federal Circuit Court of Australia considered an application for judicial review concerning a decision of the former Migration Review Tribunal (MRT) in relation to a Temporary Business (Class UC) visa Subclass 457. The applicant sought to challenge the MRT's decision, and the proceedings also involved allegations concerning the conduct of the applicant's legal representative.

The Court was required to determine whether the MRT's decision involved a jurisdictional error. Additionally, the Court considered issues relating to the conduct of the applicant's lawyer, including their failure to appear at court hearings, whether they were on the register of practitioners, and their compliance with court orders. The Court also examined whether a referral to the New South Wales Legal Services Commission was appropriate, and whether the Court possessed associated and ancillary jurisdiction to address claims of misleading and deceptive conduct, breach of contract, and negligence against a person not acting as a registered migration agent.

In its reasoning, the Court addressed the alleged jurisdictional error by the MRT. It also considered the conduct of the legal representative, noting their non-compliance with court orders and their status as a registered practitioner. The Court determined that a referral to the New South Wales Legal Services Commission was warranted due to the conduct of the legal representative. Furthermore, the Court found that it did not have the necessary jurisdiction to entertain the claims of misleading and deceptive conduct, breach of contract, and negligence against the individual acting outside the scope of a registered migration agent.

Orders