BHANDARI v Minister for Immigration - [2018] FCCA 1627

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHANDARI v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1627

Catchwords:
MIGRATION – PRACTICE & PROCEDURE – Application for summary dismissal of proceeding for judicial review o decision made by the Administrative Appeals Tribunal affirming decision not to grant applicant medical treatment visa whether applicant has no reasonable prospect of successfully prosecuting proceeding – proceeding dismissed.

Legislation:

Australian Constitution, s.75(v)
Federal Circuit Court of Australia Act 1999 (Cth), s.17A(2)
Federal Circuit Court Rules 2001 (Cth), r.13.10
Federal Court Act 1976 (Cth), s.31A
Migration Act 1958 (Cth), ss.5, 476
Migration Regulations 1994 (Cth), Schedule 2, cls.602.212, 602.213, 3001

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 116

Applicant:

MILAN BHANDARI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3312 of 2017

Judgment of:

Judge Manousaridis

Hearing date:

14 June 2018

Date of Last Submission:

14 June 2018

Delivered at:

Sydney

Delivered on:

14 June 2018

REPRESENTATION

Applicant in person, assisted by an interpreter

Solicitor for the first respondent:

Mr H Gao

ORDERS

Pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth) the proceeding is dismissed.
The applicant pay the first respondent’s costs of the proceeding set in the amount of $3,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3312 of 2017

MILAN BHANDARI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Before the Court is an application brought by the first respondent (Minister) for an order pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) which provides as follows:
The Court . . . may order that a proceeding be stayed or dismissed generally, or in relation to any claim for relief in the proceeding if the Court . . . is satisfied that: (a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim . . .
This rule closely reflects s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) (FCC Act).
The Minister brings the application in relation to a proceeding commenced by the applicant with this Court on 26 October 2017. In that proceeding the applicant seeks judicial review of a decision made by the second respondent (Tribunal) not to grant the applicant a Medical Treatment (Class UB) visa (MT visa). The application for judicial review is brought under s.476(1) of the Migration Act 1958 (Cth) (Act) which confers on this Court the same original jurisdiction in relation to migration decisions as the High Court has under s.75(v) of the Constitution.
There would appear to be no doubt that r.13.10 of the FCC Rules is capable of applying to applications for judicial review brought in this Court under s.476 of the Act. I say that because the Full Federal Court in at least one case has considered…

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 1627
Decision Date: 14 June 2018

CaseChat Overview and Summary

In *Bhandari v Minister for Immigration*, the applicant, Mr Bhandari, sought judicial review of a decision by the Minister for Immigration to refuse his application for a Partner (Provisional) (Class UF) visa. The dispute centred on whether the Minister had adequately considered the applicant's submissions regarding his genuine and continuing relationship with his partner, and whether the Minister's decision was affected by an error of law. The matter came before Judge Manousaridis in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had failed to take into account relevant considerations, specifically the applicant's detailed submissions concerning the nature and genuineness of his relationship. This involved an examination of whether the delegate's assessment of the relationship was based on an erroneous understanding of the evidence provided, or if the delegate had failed to give proper weight to certain aspects of that evidence, thereby potentially breaching the requirements of administrative law.

Judge Manousaridis found that the delegate had failed to adequately consider the applicant's detailed submissions regarding the genuineness and continuing nature of his relationship. The Court reasoned that the delegate's decision-making process did not demonstrate a proper engagement with the evidence presented by the applicant, which included extensive documentation and personal statements. The legal principle applied was that administrative decision-makers must genuinely consider all relevant material placed before them, and a failure to do so constitutes an error of law.

The Court ordered that the Minister's decision be set aside and remitted to the Minister for redetermination according to law.

Orders