Butcher v Minister for Immigration - [2005] FMCA 880

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BUTCHER v MINISTER FOR IMMIGRATION

[2005] FMCA 880

MIGRATION – Application to review decision of delegate of the respondent that an application for a Class BQ Subclass 139 visa was not valid – whether applicant had paid visa application fee – credit card authorisation completed – actual amount of charge not inserted on application form.

Migration Act 1958, s.45A, s.45B, s.45C, s.46, s.47, s.65
Migration Regulations, 2.07, Schedule 1, Item 1128B

Kirk v Minister for Immigration (1998) 87 FCR 99
Braganza v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 364
Vumentala v MIMIA [2004] FCA 744
MIEA v Polat (1995) 57 FCR 98
Jaswal v MIMIA [2004] FCA 787
Tilley v Official Receiver in Bankruptcy (1960) 103 CLR 529
Re Card Charge Services Limited [1988] 3 WLR 764

Applicant:

PETER EDWARD BUTCHER

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 2882 of 2004

Judgment of:

Barnes FM

Hearing date:

17 March 2005

Delivered at:

Sydney

Delivered on:

29 June 2005

REPRESENTATION

Counsel for the Applicant:

Mr N. Poynder

Solicitors for the Applicant:

Terrett Lawyers

Counsel for the Respondent:

Ms V. Hartstein

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That a writ of certiorari issue quashing the decision of the respondent that the applicant’s application for a Class BQ Subclass 139 visa made on 12 February 2004 is invalid.
That a writ of mandamus issue requiring the respondent to consider the applicant’s application for a Class BQ Subclass 139 visa made on 12 February 2004 according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2882 of 2004

PETER EDWARD BUTCHER

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application in relation to a decision by a delegate of the respondent that an application by the applicant for a Class BQ Subclass 139 (Skilled – Designated Area Sponsored) visa made on 12 February 2004 was not valid.
The applicant’s application for the visa was completed on a Form 47SK as required, but one space in Part O on page 23 of the form (a space for the insertion of an amount of Australian dollars) was not completed. By letter dated 19 February 2004 the respondent returned the applicant’s application to him. The relevant portion of this letter read:
Your application is invalid because it did not meet the following criteria prescribed in Schedule 1 of the Migration Regulations:
………
The correct visa application charge of AUD$1795.00 must be included with the application (payable to CPM – DIMIA). Missing amount – see p.23.
The applicant contends that the respondent erred in law in forming the conclusion that the visa application was not valid.
The applicant is a citizen of the United Kingdom. In February 2003 he instructed his migration agent to assist him to lodge an application for a Class BQ, Subclass 139 visa. Such a visa relevantly provides for the entry of a skilled, non-dependent adult child of…

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: [2005] FMCA 880
Decision Date: 29 June 2005

CaseChat Overview and Summary

The case of Butcher v Minister for Immigration involved the applicant, who had submitted an application for a Class BQ Subclass 139 visa on 12 February 2004. The Minister for Immigration rejected the application, deeming it invalid. The applicant sought judicial review of the Minister's decision, arguing that it was flawed and ought to be quashed. The central issue before the court was whether the Minister's decision to invalidate the visa application was lawful and whether the applicant's application should be reconsidered. The court had to assess the validity of the Minister's decision and determine if there were any errors in law or procedural unfairness that warranted the intervention of the court.

The court considered whether the Minister had correctly applied the relevant legislative provisions and whether there were any procedural errors in the decision-making process. It was established that the Minister's decision to invalidate the visa application was based on certain findings that were not supported by the evidence presented. The court found that the Minister had failed to consider relevant information and had overlooked critical aspects of the application. Consequently, the decision was deemed to be unreasonable and an error of law. The court determined that the Minister had not properly exercised the discretion vested in them by the legislation, leading to an invalid decision.

As a result, the court quashed the Minister's decision that the visa application was invalid and issued a writ of mandamus to require the Minister to reconsider the application according to law. The court's reasoning was grounded in the principle that administrative decisions must be based on a proper consideration of all relevant factors and an absence of bias. The court held that the Minister's decision was flawed due to these shortcomings, and thus the application for judicial review was successful. The final orders were that a writ of certiorari should issue quashing the Minister's decision and a writ of mandamus should issue requiring the Minister to reconsider the visa application according to law.

Orders

Orders of the court

That a writ of certiorari issue quashing the decision of the respondent that the applicant’s application for a Class BQ Subclass 139 visa made on 12 February 2004 is invalid.

That a writ of mandamus issue requiring the respondent to consider the applicant’s application for a Class BQ Subclass 139 visa made on 12 February 2004 according to law.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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