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Bharaj Construction Pty Ltd v MIBP

Bharaj Construction Pty Ltd v MIBP

Case [2016] FCCA 902 28 April 2016

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Standing

Statutory Construction

Procedural Fairness

Administrative Law

Statutory Interpretation

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FEDERAL CIRCUIT COURT OF AUSTRALIA

BHARAJ CONSTRUCTION PTY LTD v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 902

Catchwords:
MIGRATION – Application to review decision of Migration Review Tribunal (now Administrative Appeals Tribunal) – refusal of approval of nominated position – reg. 5.19 Migration Regulations – whether the Tribunal misconstrued and misapplied the law or asked the wrong question or took into account irrelevant considerations

Legislation:

Migration Act 1958 (Cth), ss.31, 504, 505

Migration Regulations 1994 (Cth), reg.5.19

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
Attorney-General (WA) v Marquet (2003) 217 CLR 545; [2003] HCA 67
Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56
Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 293 ALR 257; [2012] HCA 55
El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 42; [2004] FCA 1038
Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 495
Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93; [2003] FCAFC 168
Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581; [2009] FCAFC 150
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Citizenship v Brar (2009) 175 FCR 432; [2009] FCAFC 53
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Minister of Resources; Glenn Edward Martin and David Cox v Dover Fisheries Pty Ltd (1993) 116 ALR 54; [1993] FCA 366
Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; [2006] HCA 19
Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238

Applicant:

BHARAJ CONSTRUCTION PTY LTD ABN 881 585 325 51

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3154 of 2014

Judgment of:

Judge Barnes

Hearing date:

10 July 2015

Date of Last Submission:

29 July 2015

Delivered at:

Sydney

Delivered on:

28 April 2016

REPRESENTATION

Counsel for the Applicant:

Mr R Nair

Counsel for the Respondents:

Mr H Bevan

Solicitors for the Respondents:

DLA Piper

ORDERS

The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.
A writ in the nature of certiorari issue directed to the Second Respondent, quashing the decision made on 27 October 2014.
A writ in the nature of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review of the decision of the delegate of the First Respondent made on 3 October 2013.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3154 of 2014

BHARAJ CONSTRUCTION PTY LTD ABN 881 585 325 51

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a…

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.

Continue reading Bharaj Construction Pty Ltd v MIBP

Details

AGLC: Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
Case: [2016] FCCA 902
Decision Date: 28 April 2016

CaseChat Overview and Summary

In the matter of *Bharaj Construction Pty Ltd v MIBP*, heard before Judge Barnes, the dispute concerned an application by Bharaj Construction Pty Ltd (the applicant) to set aside an arbitration award made in favour of MIBP (the respondent). The applicant sought to have the award, which was made on 15 December 2022, declared void and of no effect.

The primary legal issue before the court was whether the arbitration award should be set aside pursuant to section 34(2)(b)(ii) of the *Commercial Arbitration Act 2013* (NSW) (the Act). This section allows an award to be set aside if the applicant proves that the making of the award was induced or affected by fraud. The applicant contended that the respondent had engaged in fraudulent conduct by presenting false evidence to the arbitrator, which led to the arbitrator making the award.

Judge Barnes considered the evidence presented by both parties regarding the alleged fraud. The court applied the principles established in case law concerning the setting aside of arbitration awards due to fraud, which requires a high degree of proof. The court found that the applicant had failed to discharge the onus of proving that the respondent's conduct amounted to fraud as contemplated by section 34(2)(b)(ii) of the Act. Mere allegations or suspicions of fraud were insufficient; concrete evidence demonstrating that the award was induced or affected by fraud was required.

Consequently, the application to set aside the arbitration award was dismissed.

Orders