BVY20 v Minister for Immigration - [2020] FCCA 1247

FEDERAL CIRCUIT COURT OF AUSTRALIA

BVY20 v MINISTER FOR IMMIGRATION

[2020] FCCA 1247

Catchwords:
MIGRATION – Substantive application seeking review of the decision of the Minister’s delegate refusing to waive a no further stay visa condition.

PRACTICE & PROCEDURE – Application in a case seeking summary dismissal pursuant to Rule 13.10 of the Federal Circuit Court Rules 2001 (Cth) of the substantive application – whether there are reasonable prospects of success – factors considered – no reasonable prospects of success – application in a case allowed – substantive application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476
Migration Regulations 1994 (Cth), reg.2.05
Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016
Federal Court of Australia Act 1976 (Cth), s.31A

Federal Circuit Court of Australia Act 1999 (Cth), s.17A

Federal Circuit Court Rules 2001 (Cth), r.13.10

Cases cited:

Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118; (2010) 84 ALJR 612; (2010) 269 ALR 233
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125; (1964) 38 ALJR 253; [1965] ALR 36
Prosser v Trustees of the Roman Catholic Church for the Diocese of Wagga Wagga [2014] FCCA 1476
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60; (2008) 167 FCR 372; (2008) 246 ALR 465; (2008) 103 ALD 505

Hariady v Minister for Immigration [2018] FCCA 407

Chung v University of Sydney [2001] FMCA 94

Yo Han Chung v University of Sydney & Ors [2002] FCA 186

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

SZNXA v Minister for Immigration and Citizenship [2010] FCA 775

ANA18 v Minister for Home Affairs [2018] FCA 1854

WZATH v Minister for Immigration & Anor [2014] FCCA 612

WZATH v Minister for Immigration and Border Protection [2014] FCA 969

BQN16 & Anor v Minister for Immigration & Anor [2019] FCCA 481
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173; (2015) 90 ALJR 197; (2015) 327 ALR 8; (2015) 148 ALD 206

Applicant:

BVY20

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

SYG 3957 of 2017

Judgment of:

Judge Nicholls

Hearing date:

14 May 2020

Date of Last Submission:

14 May 2020

Delivered at:

Sydney

Delivered on:

21 May 2020

REPRESENTATION

Applicant:

In person (by telephone)

Solicitors for the Respondent:

Australian Government Solicitor

Legal Representative for the Respondent:

Mr M. Gao (by telephone)

ORDERS

The substantive application made on 19 December 2017 is dismissed pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the respondent’s costs set in the amount of $3667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3957 of 2017

BVY20

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

This is an application in a case made by the Minister on 6 June 2018, seeking summary dismissal pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001

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: [2020] FCCA 1247
Decision Date: 21 May 2020

CaseChat Overview and Summary

The applicant, BVY20, sought judicial review of a decision by the Minister for Immigration's delegate to refuse to waive a 'no further stay' visa condition. The Minister applied for summary dismissal of the substantive application pursuant to Rule 13.10 of the Federal Circuit Court Rules 2001 (Cth).

The central legal issue before the Court was whether the substantive application had reasonable prospects of success. This required the Court to consider the merits of BVY20's challenge to the delegate's decision in light of the relevant migration law and the evidence before the delegate.

Judge Nicholls found that BVY20's substantive application lacked reasonable prospects of success. The Court considered the factors relevant to assessing the prospects of success in such applications, including the strength of the applicant's arguments and the likelihood of demonstrating jurisdictional error. Having determined that the application was without merit, the Court allowed the Minister's application for summary dismissal and dismissed the substantive application.

Orders