FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAUTISTA v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 702 |
| Catchwords: MIGRATION – Application for review of former Migration Review Tribunal decision – whether the further prescribed period in s.359B of the Act is in addition to the prescribed period in s.359B of the Act – whether the Tribunal misapplied or misunderstood reg.4.18A of the Regulations – the prescribed further period commences when the applicant received notice of it – whether the Tribunal was unreasonable in the exercise of a statutory discretion – whether the Tribunal breached s.359A of the Act – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359A, 359B, 359C, 360, 363A, 379A, 379C, 424A, 476 Migration Regulations 1994 (Cth), rr.4.17, 4.18A, sch.2 cl.801.221(6) |
| Applicant: | SHERA MARIE BAUTISTA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3325 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 14 February 2017 |
| Date of Last Submission: | 14 February 2017 |
| Delivered at: | Sydney |
| Delivered on: | 11 April 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones of Parish Patience Immigration Lawyers |
| Solicitors for the Respondents: | Mr L Leerdam of DLA Piper Australia |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 28 November 2014 and amended on 14 February 2017 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3325 of 2014
| SHERA MARIE BAUTISTA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 28 November…
Keep reading for free
Create a free CaseChat account to read Bautista v Minister for Immigration and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
Details
- Case
- [2017] FCCA 702
- Decision Date
CaseChat Overview and Summary
The applicant, Bautista, sought judicial review of a decision by the Minister for Immigration, which affirmed a delegate's decision to refuse a partner visa application. The Administrative Appeals Tribunal had affirmed the delegate's decision, finding that the applicant's evidence regarding her de facto relationship lacked credibility. The dispute centred on whether the Tribunal had failed to provide the applicant with an opportunity to respond to adverse information it considered in reaching its decision.
The primary legal issue before the Federal Circuit and Family Court of Australia was whether the Tribunal, in its consideration of the evidence at paragraph [66] of its decision, had relied on information that required it to provide the applicant with an opportunity to comment under section 359A of the *Migration Act 1958* (Cth). Specifically, the applicant argued that the Tribunal's reference to "the above evidence" encompassed information detailed in paragraphs [57]-[59], including a letter from Ms C dated June 2003. This letter contained allegations that the applicant's sponsor was in a relationship with Ms C and residing with her, and that the applicant was aware of this.
Judge Nicholls reasoned that the Tribunal's statement at [66] that "the evidence that the applicant’s sponsor was residing with Ms C at the time of his marriage with the applicant and at the time the application was lodged is far stronger than the evidence provided by the applicant" indicated a reliance on the information contained in Ms C's letter. The Tribunal's subsequent findings regarding the applicant's lack of credibility were directly linked to this adverse information. As no hearing was held, the Tribunal was obliged under section 359A to provide the applicant with a written invitation to comment on this information before affirming the delegate's decision. The Court found that the Tribunal had failed to do so.
The Court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.
The primary legal issue before the Federal Circuit and Family Court of Australia was whether the Tribunal, in its consideration of the evidence at paragraph [66] of its decision, had relied on information that required it to provide the applicant with an opportunity to comment under section 359A of the *Migration Act 1958* (Cth). Specifically, the applicant argued that the Tribunal's reference to "the above evidence" encompassed information detailed in paragraphs [57]-[59], including a letter from Ms C dated June 2003. This letter contained allegations that the applicant's sponsor was in a relationship with Ms C and residing with her, and that the applicant was aware of this.
Judge Nicholls reasoned that the Tribunal's statement at [66] that "the evidence that the applicant’s sponsor was residing with Ms C at the time of his marriage with the applicant and at the time the application was lodged is far stronger than the evidence provided by the applicant" indicated a reliance on the information contained in Ms C's letter. The Tribunal's subsequent findings regarding the applicant's lack of credibility were directly linked to this adverse information. As no hearing was held, the Tribunal was obliged under section 359A to provide the applicant with a written invitation to comment on this information before affirming the delegate's decision. The Court found that the Tribunal had failed to do so.
The Court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
In its analysis, at [66], the Tribunal stated (at CB 173 to CB 174):“Taking into account all the above evidence, on balance, the Tribunal considers that the evidence that the applicant’s sponsor was residing with Ms C at the time of his marriage with the applicant and at the time the application was lodged is far stronger than the evidence provided by the applicant to the Department that they were residing together at that time. The Tribunal finds the applicant’s evidence relating to when she entered a de facto relationship with her sponsor, the genuineness of her spousal relationship, particularly in 2003 and when the relationship allegedly ceased, to lack credibility, given the weight of the documentary evidence that indicates her sponsor was living with someone else in 2003 at the time of his marriage to the applicant, and the fact that the applicant did not notify the Department in October or December 2003 when she changed address that her relationship with her sponsor had ceased. She only acknowledged the relationship had ceased after the Department advised her that the sponsor had withdrawn his sponsorship in May 2004.”[Emphasis added.] The applicant argued that the words “the above evidence”, as they appear at [66] (at CB 173), included a reference to what the Tribunal set out at [57] - [59] (at CB 172), and in particular at [59] (at CB 172) as follows: “The letter provided to the Department dated June 2003 from Ms C stated that she had been in a relationship with the applicant’s sponsor since 23 November 2002 and the applicant was aware of this relationship. She claimed that the applicant’s sponsor resided with her six nights a week at the address in Blacktown. Since receiving a warning from the Department case officer about allegations he has spent more time at Liberty Grove address. During the Anzac Day long weekend Ms C and the applicant’s sponsor drove to Coffs Harbour for four days. They celebrated the sponsor’s 25th birthday together at a party on 6 June 2003 and together at home the following day. She alleged the wedding card provided to the Department was ‘fake’ as it said it was from their parents but both their parents lived overseas and the card was purchased in Australia. Two witnesses signed Ms C’s statement and Ms C attached a copy of the wedding card, receipts in both names for their holiday together in Coffs Harbour, copies of the sponsor’s mobile telephone bills addressed to the Blacktown address dated 4 May 2003 and 4 June 2003; and a video and several photographs of the applicant’s sponsor with Ms C dated between December 2002 and June 2003.”[Note: Ms C also claimed to be in a relationship with Mr Bautista.] The applicant’s argument was that what was contained in the letter from Ms C (dated June 2003) was information that was a part of the reason for affirming the delegate’s decision. As such, it was caught by the obligation in s.359A of the Act, and the Tribunal was obliged to give the applicant an invitation to comment on, or respond to, this information. As no hearing pursuant to s.360 of the Act took place, that invitation had to have been given in writing.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.