Baig & Ors v MIBP - [2018] FCCA 2986

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAIG & ORS v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2986

Catchwords:

MIGRATION – Migration Act 1958 (Cth) – application for Skilled visas –application for judicial review of decision of Administrative Appeals Tribunal which affirmed the Decision of a Delegate of the Minister for Immigration not to grant Skilled visas to the applicants – Administrative Appeals Tribunal did not have discretion to consider exceptional reasons – applicant fails to establish jurisdictional error affecting the decision of the Administrative Appeals Tribunal – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases cited:

Berenguel v Minister for Immigration & Citizenship (2010) 264 ALR 417

Kaur & Minister for Immigration and Border Protection (2015) 233 FCR 507

Milanes v Minister for Immigration & Border Protection (2015) 234 FCR 508

First Applicant:

FASAHAT ADEEL BAIG

Second Applicant:

HUMESA ADEEL

Third Applicant:

ASHER BAIG

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 199 of 2017

Judgment of:

Judge Dowdy

Hearing date:

17 October 2018

Delivered at:

Sydney

Delivered on:

17 October 2018

REPRESENTATION

The Applicant appeared in person on behalf of himself and the Second and Third Applicants.

Counsel for the First Respondent:

Ms A. Zinn

Solicitors for the First Respondent:

Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 20 January 2017 is dismissed.
The First and Second Applicants are to pay the First Respondent’s costs of the proceeding in the amount of $5,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 199 of 2017

FASAHAT ADEEL BAIG

First Applicant

HUMERA ADEEL

First Applicant

ASHER BAIG

First Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

By Application filed on 20 January 2017, the Applicants seek to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 23 December 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 1 August 2016 refusing to grant to them Skilled (Provisional) (Class VC) (Subclass 485) visas (Skilled visa(s)).

Background

The First Applicant is a male citizen of Pakistan aged 39 years, having been born on 6 October 1979. The Second Applicant is his wife and is aged 34 years, having been born on 13 July 1984, and the Third Applicant is their son aged 9 years, having been born on 30 August 2009. The Applicants lodged their application for the Skilled visas on 19 July 2016.
The Second and Third Applicants applied for the Skilled visa on the basis of being the members of a family unit of a person, namely the First Applicant, who held a Skilled visa, he having to satisfy the primary criteria for the Skilled visa and they only having to satisfy the secondary criteria.

Statutory…

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: [2018] FCCA 2986
Decision Date: 17 October 2018

CaseChat Overview and Summary

The applicants, Baig and others, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the Minister's delegate's refusal to grant them skilled visas. The matter came before Dowdy J in the Federal Court of Australia.

The central legal issue before the Court was whether the AAT had the discretion to consider exceptional reasons when determining the applicants' eligibility for skilled visas, despite the delegate's prior refusal. The applicants contended that the AAT's failure to consider such reasons constituted a jurisdictional error.

Dowdy J reasoned that the Migration Act 1958 (Cth) and relevant regulations did not confer upon the AAT a discretion to consider exceptional reasons in this context. The AAT's role was to review the delegate's decision based on the criteria established by the legislation. As the AAT was not empowered to consider the exceptional circumstances put forward by the applicants, its decision did not involve a jurisdictional error. Consequently, the application for judicial review was dismissed.

Orders