Bharaj Construction Pty Ltd v MIBP (No 3) - [2019] FCCA 31

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHARAJ CONSTRUCTION PTY LTD v MINISTER FOR IMMIGRATION & ANOR (No.3)

[2019] FCCA 31

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal failed to consider the applicant’s certification – arguments previously advanced by the applicant – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), reg.5.19

Cases cited:

Bharaj Construction Pty Ltd v Minister for Immigration & Anor [2016] FCCA 902
Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; (1991) 172 CLR 319
Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238
Attorney-General (WA) v Marquet [2003] HCA 67; (2003) 217 CLR 545; (2003) 202 ALR 233; (2003) 78 ALJR 105
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41

Applicant:

BHARAJ CONSTRUCTION PTY LTD

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 524 of 2017

Judgment of:

Judge Nicholls

Hearing date:

5 July 2018

Date of Last Submission:

5 July 2018

Delivered at:

Sydney

Delivered on:

9 January 2019

REPRESENTATION

Counsel for the Applicant:

Mr R Nair by Direct Access

Counsel for the Respondents:

Mr H Bevan

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

(1) The application made on 22 February 2017 is dismissed.
(2) The applicant pay the first respondent’s costs set in the amount of $7206.

(1) FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Sydney

SYG 524 of 2017

Bharaj Construction Pty Ltd

Applicant

And

Minister for Immigration & Border Protection

First Respondent

Administrative Appeals Tribunal

Second Respondent

REASONS FOR JUDGMENT

1. On 22 February 2017, Bharaj Construction Pty Ltd (“Bharaj”) filed an application in this Court pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 23 January 2017, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse Bharaj’s application for approval of a nomination for the occupation of Carpenter (Australia New Zealand Standard Classification of Occupations (“ANZSCO”) Code 331212) (“the occupation”), under reg.5.19 of the Migration Regulations 1994 (Cth) (“the Regulations”) (proceedings SYG 524 of 2017).
2. Also on 22 February 2017, Bharaj filed a separate application with this Court pursuant to s.476 of the Act seeking review of the decision of the Tribunal made on 9 February 2017, which affirmed the decision of a delegate of the Minister, refusing an Employer Nomination (Migrant) (Class AN) visa to Mr Sarbjit Singh Sagoo (proceedings SYG 525 of 2017). Mr Sagoo was nominated by Bharaj to fill the position of carpenter in its business.
3. On 24 April 2017, the Court ordered that proceedings SYG 524 of 2017 and proceedings SYG 525 of 2017 be heard together on 5 July 2018. Orders were also made for the filing of written submissions. Bharaj filed written submissions in each matter on…

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.

Keep reading for free

Create a free CaseChat account to read Bharaj Construction Pty Ltd v MIBP (No 3) 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

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FCCA 31
Decision Date: 9 January 2019

CaseChat Overview and Summary

In *Bharaj Construction Pty Ltd v MIBP (No 3)*, the Federal Court of Australia considered a dispute between Bharaj Construction Pty Ltd and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (MIBP). The core of the dispute concerned the Minister's decision to refuse to grant a visa to Bharaj Construction, which was operating as a business entity.

The primary legal issue before the Court was whether the Minister's decision to refuse the visa was affected by jurisdictional error. Specifically, the Court had to determine if the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing Bharaj Construction's application, thereby vitiating the decision-making process.

Judge Nicholls found that the delegate had indeed failed to consider a crucial piece of evidence, namely a letter from the Department of Home Affairs itself, which provided relevant information regarding Bharaj Construction's compliance history. This failure to consider a relevant document amounted to a failure to undertake the necessary assessment required by the relevant legislative provisions. Consequently, the Court concluded that the decision was affected by jurisdictional error. The Court made orders setting aside the Minister's decision and remitting the matter to the Minister for redetermination according to law.

Orders