Campos v Minister for Immigration - [2019] FCCA 420

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAMPOS v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 420

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Partner (Temporary) (Class UK) visa – whether the Tribunal considered the relevant law – whether the Tribunal had a real and genuine engagement with the applicant’s evidence and claims – whether the Tribunal misdirected itself as to the nature of the relationship – whether the adverse findings of the Tribunal lack an evident and intelligible justification. – whether the Tribunal failed to take into account all of the evidence – no jurisdictional error made out – further amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 476

Migration Regulations 1994 (Cth), r.1.15A & cl. 820.211, 820.221

Cases cited:
Sing v Minister for Immigration & Anor [2016] FCCA 114

Applicant:

INGIRD JANETH TOLOZA CAMPOS

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 77 of 2017

Judgment of:

Judge Street

Hearing date:

22 February 2019

Date of Last Submission:

22 February 2019

Delivered at:

Perth

Delivered on:

22 February 2019

REPRESENTATION

Counsel for the Applicant:

Mr D Blades

Solicitors for the Applicant:

Rothstein Lawyers

Solicitors for the Respondents:

Mr A Gerrard
Australian Government Solicitor

ORDERS

Grant leave to the applicant to rely upon the further amended application filed 11 January 2019.
The further amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

DATE OF ORDER: 22 February 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 77 of 2017

INGIRD JANETH TOLOZA CAMPOS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 12 January 2017, affirming a decision of a delegate not to grant the applicant a Partner (Temporary) (Class UK) visa.
The applicant applied for the visa on 28 July 2015 on the basis of a relationship with a sponsor. On 22 September 2015, the delegate found the applicant failed to meet the criteria for the grant of the visa.
The applicant applied for a review on 5 October 2015. By letter dated 17 August 2015, 5he applicant was invited to attend a hearing before the Tribunal on 15 September 2016. The applicant appeared before the Tribunal on that date to give evidence and present arguments. The Tribunal identified the background to the visa application and in particular the requirements of the primary criteria in cl 820.211 and cl 820.221 of the Migration Regulations 1994 (Cth) (“the Regulations”) which require, at the time of application and decision, the applicant to be the spouse or de facto partner of the sponsor, unless the relationship has ceased and certain circumstances exist
The Tribunal noted that the delegate had found that the applicant did…

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 420
Decision Date: 22 February 2019

CaseChat Overview and Summary

In *Campos v Minister for Immigration*, the applicant sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) concerning an application for a Partner (Temporary) (Class UK) visa. The applicant contended that the Tribunal had failed to properly consider the relevant law and had not genuinely engaged with the evidence and claims presented. Specifically, the applicant argued that the Tribunal had misdirected itself regarding the nature of the relationship and that its adverse findings lacked evident and intelligible justification, amounting to a failure to take into account all the evidence.

The central legal issues before the court were whether the AAT had engaged in a real and genuine consideration of the applicant's evidence and claims, whether it had correctly applied the law governing partner visas, and whether its adverse findings were supported by adequate reasoning. The court was required to determine if any of these alleged failures constituted a jurisdictional error.

Judge Street found that the Tribunal had not made a jurisdictional error. The reasoning indicated that the Tribunal had considered the relevant legal framework and had made findings based on the evidence before it, even if those findings were adverse to the applicant. The court concluded that the Tribunal's assessment of the evidence and its ultimate decision were within its powers and did not demonstrate a failure to engage with the material or a misapplication of the law. Consequently, the further amended application was dismissed.

Orders