BI v Minister for Immigration - [2018] FCCA 335

FEDERAL CIRCUIT COURT OF AUSTRALIA

BI & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 335

Catchwords:
MIGRATION – Application for review of former Migration Review Tribunal decision – general assertions of legal error by the Tribunal.

PRACTICE & PROCEDURE – Application in a Case seeking orders that the applicants have leave to amend their application – applicants sought to provide further evidence at the final hearing and the handing down of the judgment in the substantive matter – Application in a Case refused.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s.42

Migration Act 1958 (Cth), s.476

Migration Regulations 1999 (Cth), sch.2, cl.447.224, sch.4, PIC 4020

Cases cited:

Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22

The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132
ASIC v Rich[2006] NSWSC 826; (2006) 235 ALR 587
W284 v Minister for Immigration & Multicultural Affairs [2001] FCA 1788
Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230; (2003) 131 FCR 511
WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171; (2003) 131 FCR 511

First Applicant:

SHUJUAN BI

Second Applicant:

TENG MU

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3446 of 2014

Judgment of:

Judge Nicholls

Hearing date:

13 March 2018

Date of Last Submission:

13 March 2018

Delivered at:

Sydney

Delivered on:

16 April 2018

REPRESENTATION

Solicitors for the Applicants:

Ms E Anang of Christopher Levingston & Associates

Solicitors for the Respondents:

Ms C Hillary of DLA Piper Australia

ORDERS

The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The Application in a Case made on 9 March 2018 is dismissed.
The applicants pay the first respondent’s costs set in the amount of $3,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3446 of 2014

SHUJUAN BI

First Applicant

TENG MU

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

I have before me an Application in a Case (“AIC”) made on 9 March 2018. The substantive proceedings to which the AIC relates is an application made by Mrs Bi and her son, Mr Mu, on 12 December 2014, which sought review of the decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”) which, on 19 November 2014, affirmed the decision of the Minister’s delegate to refuse Temporary Business Entry (Class UC) visas to Mrs Bi and Mr Mu. Mr Mu applied for the visa as Mrs Bi’s dependent.
The evidence before the Court is as follows:
a)A bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
b)The affidavit of Mrs Shujuan Bi, Director, made on 9 March 2018.
c)Email correspondence between Mr Mu and Mr David Bitel of Parish Patience Immigration Lawyers in February 2015 (“RE1 in AIC”).
d)Cover letter and Court documents sent to Mrs…

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 BI 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

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: [2018] FCCA 335
Decision Date: 16 April 2018

CaseChat Overview and Summary

The applicant, BI, sought judicial review of a decision made by the Migration Review Tribunal. The dispute concerned allegations of general legal error by the Tribunal in its original decision. The matter came before Judge Nicholls in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Migration Review Tribunal had made a reviewable error in its decision concerning BI's application. In addition, the Court was required to consider an interlocutory application by the applicant seeking leave to amend their application and to provide further evidence at the final hearing, which was occurring concurrently with the handing down of judgment in the substantive matter.

Judge Nicholls refused the interlocutory application to amend the application and provide further evidence. The Court reasoned that the proposed amendments and evidence were sought at a stage too late in the proceedings, effectively seeking to introduce new material after the substantive hearing had concluded and judgment was imminent. This approach was considered an abuse of process and contrary to the efficient conduct of litigation. The Court did not proceed to determine the substantive application for judicial review, as the interlocutory application was determinative of the applicant's ability to pursue the matter further in its amended form.

Orders