Enua v Minister for Immigration - [2019] FCCA 3604

FEDERAL CIRCUIT COURT OF AUSTRALIA

ENUA v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 3604

Catchwords:
MIGRATION – Partner visa – decision of the Administrative Appeals Tribunal – whether Tribunal gave proper consideration – whether applicant denied procedural fairness – jurisdictional error established – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.5CB, 65, 359, 359A, 359AA. 362A

Migration Regulations 1994 (Cth), reg.1.09A, 1.15A

Cases cited:

Abebe v Commonwealth (1999) 197 CLR 510
Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166
DAO16 v Minister for Immigration & Border Protection [2018] FCAFC 2
He v Minister for Immigration & Border Protection [2017] FCAFC 206

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

Nguyen v Minister for Home Affairs [2019] FCA 1095
Nguyen v Minister for Immigration & Border Protection [2018] FCA 1374
SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609
SZMDU v Minister for Immigration & Citizenship [2008] FCA 1861
SZSRR v Minister for Immigration & Border Protection [2017] FCA 328
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471

Applicant:

EPHRAIM BONIFACE ENUA

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 376 of 2017

Judgment of:

Judge Kendall

Hearing date:

21 August 2019

Date of Last Submission:

25 October 2019

Delivered at:

Perth

Delivered on:

12 December 2019

REPRESENTATION

Counsel for the Applicant:

Mr NS Nandan

Solicitors for the Applicant:

My Visa Lawyers

Counsel for the First Respondent:

Mr PJ Hannan

Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

A writ of certiorari issue directed to the second respondent quashing the decision dated 27 June 2017.
A writ of mandamus issue directed to the second respondent requiring it to reconsider and determine the applicant’s application for review according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 376 of 2017

EPHRAIM BONIFACE ENUA

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

On 12 July 2017 the applicant filed a judicial review application in this Court seeking review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 27 June 2017.
The Tribunal affirmed a decision of a delegate of the first respondent (the “Minister”) not to grant the applicant a Partner visa (the “visa”) under s.65 of the Migration Act 1958 (Cth) (the “Act”).
This matter was originally set down for hearing on 29 October 2020. It was then moved forward to 21 August 2019. The Court advised the applicant and Minister of this change by email dated 11 June 2019. On 27 June 2019, the applicant retained legal representation.
The applicant filed written submissions on 12 July 2019. Those submissions indicated that the applicant would be seeking leave to amend the application for judicial review and advised that the applicant would file an affidavit annexing a copy of the transcript of the Tribunal…

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 3604
Decision Date: 12 December 2019

CaseChat Overview and Summary

The applicant, Enua, sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT) concerning a partner visa application. The Minister for Immigration was the respondent. The core of the dispute revolved around whether the AAT had adequately considered the applicant's case and whether the applicant had been afforded procedural fairness during the Tribunal’s review process.

The central legal issues before the Federal Court were whether the AAT had committed a jurisdictional error by failing to give proper consideration to the evidence and submissions presented by the applicant, and whether the applicant had been denied procedural fairness. These questions required the Court to examine the AAT’s decision-making process and its adherence to the principles of natural justice.

Justice Kendall found that the AAT had indeed committed a jurisdictional error. The Court reasoned that the Tribunal’s decision did not demonstrate that it had properly considered all the relevant evidence and submissions put forward by the applicant, particularly concerning the genuineness of the relationship. Furthermore, the Court determined that the applicant had been denied procedural fairness because the AAT failed to provide adequate notice of the adverse findings it intended to make, thereby preventing the applicant from responding to those potential findings.

Consequently, the Federal Court issued the necessary writs to quash the AAT's decision and remit the matter for redetermination according to law.

Orders