Boddu v Minister for Immigration - [2019] FCCA 879

FEDERAL CIRCUIT COURT OF AUSTRALIA

BODDU v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 879

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Show Cause Hearing – skilled visa – application for an adjournment – application for leave to amend – failure to comply with cl.485.213 of Schedule 2 of the Migration Regulations 1994.

Legislation:

Federal Circuit Court Rules, r.44.12

Migration Regulations 1994, cl.485.213, 485.223, 485.216 of Schedule 2

Cases cited:

Anand v The Minister for Immigration and Citizenship [2013] FCA 1050
Khan v Minister for Immigration and Border Protection [2018] FCAFC 85
Seghal v Minister for Immigration and Anor [2018] FCCA 2587

Applicant:

SRAVANTHI BODDU

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1936 of 2017

Judgment of:

Judge Blake

Hearing date:

12 February 2019

Date of Last Submission:

6 March 2019

Delivered at:

Melbourne

Delivered on:

5 April 2019

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

None

Advocate for the First Respondent:

Ms Robertson

Solicitor for the First Respondent:

Mills Oakley

ORDERS

The Application filed on 7 September 2018 and amended on 27 February 2019 be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001.
The Applicant pay the First Respondent’s costs in the amount of $3,737.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1936 of 2017

SRAVANTHI BODDU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (‘the Tribunal’) on 11 August 2017. In that decision, the Tribunal affirmed a decision of a delegate to the Minister not to grant the Applicant a Skilled (Provisional) Class Visa (‘the Visa’).
The matter came before the Court as a Show Cause Hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (‘the Rules’). The question before this Court is whether the Applicant has raised an arguable case that the decision of the Tribunal is affected by jurisdictional error.
I have decided to dismiss the application for judicial review. My reasons for doing so are set out below.

The hearing on 12 February 2019, the request for an adjournment and to amend the Application

The Applicant made her Application to this Court on 7 September 2017.
On 16 May 2018, Registrar Burns listed the Application for a Show Cause Hearing pursuant to r.44.12 of the Rules. The matter was initially set down for Hearing on 19 November 2018 but was subsequently relisted to 12 February 2019. Registrar Burns made Orders, among other things, requiring the Applicant to file and serve 28 days before the hearing any amended application, any supplementary Court Book, and any written submissions. The Applicant did not file any material pursuant to these Orders.
On 12 February 2019, the matter proceeded as a Show Cause Hearing before me. The Applicant appeared in person. She sought an adjournment to seek legal advice. During the…

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: [2019] FCCA 879
Decision Date: 5 April 2019

CaseChat Overview and Summary

Boddu (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse a skilled visa. The Administrative Appeals Tribunal (AAT) had previously considered the applicant's case, including an application for an adjournment and an application for leave to amend. The core of the dispute concerned the applicant's alleged failure to comply with clause 485.213 of Schedule 2 of the *Migration Regulations 1994*.

The primary legal issue before the court was whether the AAT had erred in law by refusing the applicant's request for an adjournment of the show cause hearing. This involved determining whether the AAT's decision to proceed without the requested adjournment, and subsequently refuse the visa application, was procedurally unfair or otherwise legally flawed. The court also considered whether the AAT had properly exercised its discretion in relation to the adjournment and the application for leave to amend.

Judge Blake reasoned that the AAT had not erred in law. The Tribunal was entitled to consider the applicant's failure to comply with the requirements of clause 485.213 of the *Migration Regulations 1994* when assessing the adjournment request. The AAT had adequately considered the material before it, including the reasons for the adjournment and the proposed amendments, and had made a decision that was open to it on the evidence. The court affirmed that the AAT's discretion in relation to adjournments and amendments is broad, and its decision would only be set aside if it was demonstrably affected by an error of law.

The application for judicial review was dismissed.

Orders