CHHOR v Minister for Immigration - [2017] FCCA 2135

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHHOR v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2135

Catchwords:
MIGRATION – Partner visa – allegations of family violence – none proved – applicant seeking to rely on information he provided to the Tribunal after the Tribunal provided its reasons – Tribunal at that point functus officio.

FUNCTUS OFFICIO – Doctrine of – relationship with doctrine of res judicata.

SECTION 375A CERTIFICATE – Applicant had document well prior to Tribunal decision – no lost opportunity to applicant in advancement of his case.

Legislation:

Freedom of Information Act 1982 (Cth), s.47F(1)

Migration Act 1958 (Cth), ss.5CB, 5F, 368(2), 368(2A), 375A

Migration Amendment Act 2014 (Cth)
Migration Regulations 1994 (Cth), cl.801.221 of Sch.2, regs.1.09A, 1.15A

Cases cited:

Applicant V346 of 2000 v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 536
AVO15 v Minister for Immigration and Border Protection [2017] FCA 566
Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No.1) (1991) 32 FCR 219
Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301

Minister for Immigration and Border Protection v Singh [2017] HCATrans 107

Thomas Penberthy Fry, ‘The Finality of Judicial Decisions’ (1956) 2 University of Queensland Law Journal 9

Applicant:

VOAN CHHOR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2251 of 2014

Judgment of:

Judge Wilson

Hearing dates:

14 June 2017 & 18 August 2017

Date of Last Submission:

18 August 2017

Delivered at:

Melbourne

Delivered on:

6 September 2017

REPRESENTATION

Applicant in person

Counsel for the first respondent:

Mr N. Wood

Solicitors for the first respondent:

Sparke Helmore

ORDERS

The application filed 14 November 2014 is dismissed.
The applicant pay the costs of the first respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2251 of 2014

VOAN CHHOR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application filed 10 November 2014 the applicant sought judicial review of a decision made on 8 October 2014[1] by…

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: [2017] FCCA 2135
Decision Date: 6 September 2017

CaseChat Overview and Summary

The applicant, Mr. Chhor, sought judicial review of a decision by the Minister for Immigration to refuse his partner visa application. The primary dispute concerned whether the Administrative Appeals Tribunal (AAT) had erred in law by failing to consider information provided by Mr. Chhor after the Tribunal had issued its reasons for decision. The matter came before Judge Wilson of the Federal Circuit Court of Australia.

The central legal issue before the Court was whether the AAT, having delivered its reasons for decision, was *functus officio* and therefore unable to consider further evidence or submissions from the applicant. This doctrine of *functus officio* was considered in relation to the doctrine of *res judicata*. A further issue arose concerning a Section 375A certificate, with the Court needing to determine if the applicant had been denied a fair opportunity to advance his case in relation to this certificate.

Judge Wilson held that the AAT was indeed *functus officio* once it had published its reasons for decision, meaning it had no further authority to act in the matter. The Court reasoned that the applicant had possessed the relevant document pertaining to the Section 375A certificate well before the Tribunal's decision, and therefore, there was no lost opportunity for him to present this information in support of his case. The Court found no error of law in the Tribunal's approach.

Consequently, the application for judicial review was dismissed.

Orders